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Illegal Download =/= Lost Sale
January 21, 2009 4:01 AM   Subscribe

"[A]lthough it is true that someone who copies a digital version of a sound recording has little incentive to purchase the recording through legitimate means, it does not necessarily follow that the downloader would have made a legitimate purchase if the recording had not been available for free," said US District court Judge James P. Jones, in response to the RIAA's request for restitution against the former admin of Elite Torrents, Daniel Dove, who has already been found guilty of conspiracy and felony copyright infringement.

The RIAA's request for restitution claimed that each download was equal to a lost sale. Judge Jones disagreed, and in part of his ruling stated:
"It is a basic principle of economics that as price increases, demand decreases. Customers who download music and movies for free would not necessarily spend money to acquire the same product. I am skeptical that customers would pay $7.22 or $19 for something they got for free. Certainly 100% of the illegal downloads through Elite Torrents did not result in the loss of a sale, but both Lionsgate and RIAA estimate their losses based on this faulty assumption."
File sharers should nonetheless be wary of opening the champagne just yet.
posted by Marisa Stole the Precious Thing (110 comments total) 10 users marked this as a favorite

 
It's nice to see an outbreak of sanity, but when legislation has a clear legislative intent and instruction it's difficult to get round that as a judge.

If I was the defence attorney I would shamelessly press for a jury trial.
posted by jaduncan at 4:09 AM on January 21, 2009


"Those who download movies and music for free would not necessarily purchase those movies and music at the full purchase price"

Someone who stole a shitload of diamonds from a jewellery shop would not necessarily purchase those diamonds at the full price. But it's still nicking. I can see the industry's point of view on this.

Although, on the other hand, if I sell you a diamond, it becomes your posession and I am not going to have that diamond anymore. Whereas the music industry treats each one of its tracks as a golden goose that shits out money exponentially. Somehow that changes things.
posted by marmaduke_yaverland at 4:11 AM on January 21, 2009 [3 favorites]


If I was the defence attorney I would shamelessly press for a jury trial.

Dove was convicted by a federal jury, and this same judge last September sentenced him to 18 months. The RIAA's request for resistution was in addition to the charges for which he was already convicted.
posted by Marisa Stole the Precious Thing at 4:12 AM on January 21, 2009


You guys wanna draw straws for who has to call and break the news to Lars?
posted by mannequito at 4:13 AM on January 21, 2009 [3 favorites]


It's so basic that the surprising thing is that this is even news.
posted by caddis at 4:20 AM on January 21, 2009


When we spend as much money on the arts as we do at gas stations, then maybe the landscape will look a bit nicer.
posted by nervousfritz at 4:21 AM on January 21, 2009 [1 favorite]


I still like that natural numbers are subject to copyright.
posted by cthuljew at 4:34 AM on January 21, 2009 [1 favorite]


People need to understand that there is a difference between criminal copyright infringement and a civil suit for damages resulting from the infringement. The criminal penalities are spelled out in that FBI warning on DVD's - jail time AND hundreds of thousands of $ in fines.

The civil case is separate from that. Obviously the companies know that every download is not a lost sale, but in civil cases you often overstate the damages you seek so that when the court actually arrives at something, they settle on something reasonable between the calculations of the two parties.

I.e. the plaintiff comes in way too high, the defendant comes in way too low, and the result is somewhere in the middle.
posted by Pastabagel at 4:59 AM on January 21, 2009 [1 favorite]


I.e. the plaintiff comes in way too high, the defendant comes in way too low, and the result is somewhere in the middle.

Except that when you overdo it you risk losing credibility. The RIAA may have just pulled that off. Too bad for them. :)
posted by caddis at 5:10 AM on January 21, 2009 [2 favorites]


It is a basic principle of economics that as price increases, demand decreases.

I love that, once again, the hypocrisy of supposed free marketeers is shoved in their faces. What the RIAA basically want is (the bogeyman version of) socialism, where they are the big central producers and we are forced to use their monolithic, battleship gray product.
posted by DU at 5:20 AM on January 21, 2009


Someone who stole a shitload of diamonds from a jewellery shop would not necessarily purchase those diamonds at the full price

But the jeweler would still have lost possession of a physical good that could otherwise have been sold for profit, which is where this analogy always breaks down and is why there is a clear legal distinction between "infringement" and "theft."
posted by absalom at 5:24 AM on January 21, 2009 [9 favorites]


and we are forced to use their monolithic, battleship gray product.

Well, even as a shameless copyright infringer myself, I wouldn't claim that I had ever felt forced to listen to RIAA product. Monopoly isn't the economic issue here.

Supply-and-demand is the economic issue here. Digital copying has made the supply of recorded music effectively infinite. Thus reducing its value to effectively zero.

The RIAA's plan is to artificially disrupt that simple equation by making criminals of people who make digital copies. Like marijuana prohibition, it will never work.
posted by Joe Beese at 5:39 AM on January 21, 2009 [7 favorites]


The judge isn't saying it's not bad to download stuff illegaly, he's only saying one download is not damage equal to $STORE_PRICE. In the diamond example, it is much clearer what economic damage a stolen diamond represents --- and even then , I bet you get some wiggle room in exceptional cases, such as rare diamonds with no real street price.
posted by ghost of a past number at 5:42 AM on January 21, 2009


Someone who stole a shitload of diamonds from a jewellery shop would not necessarily purchase those diamonds at the full price. But it's still nicking. I can see the industry's point of view on this.

This is somewhat flawed in that, when the diamonds are stolen, the jeweler is, then, out of stock and cannot sell diamonds until more stock becomes available.

In the case of digital media, there is an unlimited supply. Someone downloading a free copy is not depleting or removing stock. The music/movie companies are still perfectly able to supply their wares to anyone wishing to purchase a copy, ad-infinitum.
posted by Thorzdad at 5:48 AM on January 21, 2009 [1 favorite]


I don't support the RIAA on this at all, but my observation on music downloading is that there is a generation of people who don't see a direct relationship between downloading music and paying for it at all. And why should they? Google is nominally free. Facebook is nominally free. TV is free.

If you wholly buy into the line that you're not stealing something - because it's still there for sale to people that want to - and you *never* or *rarely* pay for what you download it seems to me a little like people who don't justify their tax evasion or insurance fraud on the grounds that it hasn't hurt anyone. I.e. anyone directly.

It might be fine if everyone was an honest player who paid for x% of what they downloaded or could definitively show that they would never have paid for y, but life isn't like that.
posted by MuffinMan at 6:01 AM on January 21, 2009


The diamond analogy is interesting. Suppose there was a diamond tap in every town, free to use for everyone with unlimited supply. You could turn some knobs and pour your choice of carat, clarity, color and cut. Of course the price of diamonds in themselves would drastically drop and usage of elaborate diamond heists as movie plot elements would plummet. But the clever jeweler would only change his business model from "buying and selling stones" to "placing stones in beautiful arrangements on rings, watches, necklaces etc." and carry on, not as usual.
posted by mnsc at 6:33 AM on January 21, 2009 [8 favorites]


It might be fine if everyone was an honest player who paid for x% of what they downloaded or could definitively show that they would never have paid for y, but life isn't like that.

I've followed a lot of these discussions - including a great one here in the blue that I can't lay my hands to at the moment - and I submit that your use of the word "honest" here clouds the issue.

The sounds of Agalloch's Ashes Against The Grain that I'm listening to on my iPod at the moment are nothing but a very long binary number. It's a number that the band "discovered", if you like - but it's still just a number. And though a now-antiquated law may try to force them to act otherwise, I don't believe that people as a whole recognize a right to control the distribution of a number. Hence music "piracy" on a scale that dwarfs drug use, tax evasion, and jaywalking combined.
posted by Joe Beese at 7:17 AM on January 21, 2009


Beese, your argument is entirely specious.
posted by nowonmai at 7:28 AM on January 21, 2009


Methinks His Honor might've gotten all the Purple Chick Beatles bootlegs off Ye Olde Pirate Bay. YAAAAR!!
posted by droplet at 7:41 AM on January 21, 2009


marmaduke_yaverland writes "Someone who stole a shitload of diamonds from a jewellery shop would not necessarily purchase those diamonds at the full price. "

Copyright infringement was always treated as a civil matter, whereas theft in its various forms is treated as a criminal matter. This is because infringement of copyright is about a government-sanctioned monopoly on the creative work, not theft of property. When a copyright is infringed, there is no loss of property, but perhaps lost revenue, and it makes sense to treat it as a civil matter. However, the DMCA did criminalize copyright infringement, but this is pretty recent.
posted by krinklyfig at 7:42 AM on January 21, 2009


Joe Beese, the problem with your argument is that the binary number isn't the artifact itself; it's a format of the artifact. The copyright is on the artifact. The format itself doesn't matter.
posted by grubi at 7:52 AM on January 21, 2009


Like marijuana prohibition, it will never work.

But, like marijuana prohibition, that doesn't mean we can't keep a lot of lawyers busy for a hundred years failing to make it work.
posted by rusty at 8:01 AM on January 21, 2009 [6 favorites]


I just want to know how there can be such a thing as felony copyright infringement.

Aren't felonies supposed to be, well, you know, evil crimes?
posted by Samizdata at 8:03 AM on January 21, 2009 [3 favorites]


Joe Beese writes "I don't believe that people as a whole recognize a right to control the distribution of a number"

I'm not sure anyone really thinks of it that way, except techies who are interested in the subject. I get your point, but anything can be abstracted in this way, such as any physical object is just a collection of particles. And as long as people will exploit someone's creative work, it makes sense that the creator should have some form of control over its distribution for a limited time. It doesn't make a lot of sense to allow creative works to be exploited for commercial purposes without the creator having some sort of say in the matter, or compensation, as the case may be. That being said, the idea that anyone could truly own a creative work seems a bit silly, and trying to control its distribution is becoming more and more problematic, and I'm not sure our current model is going to last the next 20 years.
posted by krinklyfig at 8:03 AM on January 21, 2009


caddis, it isn't news insomuch that no one has thought of, expressed, or understood that idea, but that a Judge has ruled based on it. There is still a lot of grey area and interpretation; things are going to keep changing—hopefully—until we come up with something that is both fair and enforceable.

One positive side effect of all of this infringement—and the consequential lawsuits—is that we are having a discussion on the compensation of artists at all. Before people shared music digitally, and the majority still bought physical media, they were (usually) buying music that had been sold and distributed by one of the major labels. Because of the beauracracy and overhead, consumers were a lot more likely to line the pockets of businessmen than musicians.

I hope that the future of supporting artists is something akin to micro-patronage. Instead of one really rich person directly supporting an artist with huge donations (like the old days), many people could directly support them with much smaller donations—think Obama's netroots campaign.
posted by defenestration at 8:07 AM on January 21, 2009


Someone who stole made illegal copies of a shitload of diamonds from a jewellery shop would not necessarily purchase those diamonds at the full price.

I think this is what you meant.
posted by owtytrof at 8:10 AM on January 21, 2009 [2 favorites]


I purchased a DVD at the full retail price and had it in my car. My car was broken into and the DVD was stolen. Am I obligated to pay full price to replace it? If I download it or stream it to watch it again, is that a criminal act? Why or why not?
posted by spacely_sprocket at 10:33 AM on January 21, 2009


So, a well known bands releases a new song and streams it online.

I can, right now, listen to that song anytime I want on my iPhone by connecting to their website. I haven't infringed and haven't paid a dime.

I can be listening to the exact same song on Rhapsody any time I want. I haven't infringed on anything and haven't paid a dime.

The money, if there is any, being generated for the band and/or company by those models is (I assume) all ad based.

However, it is in the band's interest for me to have access to their songs because, perhaps, this will inspire me to see them in concert, or buy some other product they are offering. The song in and of itself has become a kind of ad for the actual product, presumably seeing the artist live.

Since the iPhone (and similar products) has made it possible to have the exact same experience of listening to virtually any music you want for free as when you download the song onto an your MP3 player, the value of MP3s has dropped from negligible to nil.

I propose that the window of time where the MP3 was something that could be bought and sold is already starting to close. Why bother downloading it if you can hear it for free anytime you want? The whole Interweb will eventually be your music library.

What the RIAA related companies should do immediately is start up sites where you can stream any song or album they've ever released for free and sell ads to Pepsi Blue out the wazoo. Yes, people hate ads, but they love free stuff. Do something where, for every three songs you stream, you hear a 15 second ad for something that can't be skipped. Let people assemble their own playlists from catalog. Make your site compatible with the sites of other record companies so you people can assemble any playlist they want.

This encourages people to buy portable web technology (again, like the iPhone) and allows you to get a decent ad revenue stream.

Yes, there will always be people looking for ways of avoiding the commercials, but the bulk of your user base will hear them - like they were listening to the radio.

Anyhow, that's my idea and I claim copyright to it. Should the RIAA decide to use it, they can send me a six figure check and we'll pretend this Metafilter comment never happened.
posted by Joey Michaels at 10:37 AM on January 21, 2009 [1 favorite]


And as long as people will exploit someone's creative work, it makes sense that the creator should have some form of control over its distribution for a limited time.

I'm not sure I really agree with this.

Historically, I can understand why copyright was created: the distribution of creative work was, up until fairly recently, a very capital-intensive, speculative proposition. And copyright was a convenient way to allow this speculation to go on.

But it doesn't strike me as a "right" in the same way as other, fundamental rights do; it's just a means to an end, and while it might have been a good choice at a particular time, there's no reason why it might not be the best choice right now. The 'overhead' costs to society of maintaining a copyright regime are large, in terms of lost opportunities (can't do something because the copyright owner can't be found or it's prohibitively expensive to license something) and simple broken-window costs (money spent on lawyers, etc., rather than on actual productive tasks). I'm not sure the benefits of having copyright outweigh those costs anymore, with the rapid decrease in up-front costs necessary for distributing creative works.

It's simply no longer necessary to have copyright in order to guarantee that people will publish. It might be necessary for some kinds of publication, and I think there's a legitimate discussion on exactly what that might involve, but it's not the iron-hard necessity for a modern society that it arguably might have been at one point.

Bluntly, I don't think there's any reason why artists (be they writers or musicians or computer programmers) shouldn't be compensated as the skilled laborers they are, rather than creating an enormously complex set of legal apparatus in order to allow work to be produced speculatively and paid for over time. While there might be some temporary decrease in creative output as the result of a switch to a straightforward time-for-money scheme, I'm not at all convinced that in the long run it would outweigh the benefits derived from eliminating copyright and all that it entails.
posted by Kadin2048 at 10:37 AM on January 21, 2009 [3 favorites]


What the RIAA related companies should do immediately is start up sites where you can stream any song or album they've ever released for free and sell ads to Pepsi Blue out the wazoo.

I love it. Advertising is my everything.
posted by carsonb at 10:52 AM on January 21, 2009


Hey folks, if you notice, marmaduke's comment acknowledged the difference between physical property and downloadable media:
Although, on the other hand, if I sell you a diamond, it becomes your posession and I am not going to have that diamond anymore. Whereas the music industry treats each one of its tracks as a golden goose that shits out money exponentially.
...the point of the analogy is that we don't use "what the defendant might have done instead" as a mitigating factor in other comparable illegal behavior. You accept that creators have the right to define the market value of your own work, right? That, for example, Coca-cola can charge $1.50 for ten cents' worth of water and flavorings and that if you steal a coke you're on the hook for $1.50 and not $0.10?

What is the clear, logically unassailable reason why that right doesn't apply to downloadable content? It still costs money to make it, just skewed overwhelmingly towards the initial cost (production) instead of the incremental cost (distribution). There may be such an reason... but as I said above, it's not self-evident that "how much you think it's worth" matters in the least, so that can't be it.

I'm no fan of the traditional music industry, I think they've done a lot of shady and outright unethical shit to protect their stranglehold over the market over the years. But (with some glaring exceptions) I think they've acted within their rights. The fact that they're not embracing new technology the way we want them to does not give us the right to do as we wish with the content they own, and it doesn't serve as a crutch for weak justifications of our behavior.
posted by Riki tiki at 11:06 AM on January 21, 2009


And as long as people will exploit someone's creative work

Who's doing the exploiting here, the defendant or the plaintiff?
posted by Sys Rq at 11:28 AM on January 21, 2009


Who's doing the exploiting here, the defendant or the plaintiff?

Why settle for just one! They're both doing some exploiting.
posted by Joey Michaels at 12:08 PM on January 21, 2009


Kadin2048 -

Should artists and creative professionals not be able to make a full time living doing their art? Because removing copyright entirely eliminates the ability to be a professional. When you say, oh, you can make a $30 million movie, but then you have to give it away for free, or a $10 million video game and then give it away for free, you're guaranteeing that these things won't be made.

If investors can't recoup their investments, then artistic endeavors (like movies, albums and video games) won't be financed. The money is only invested in the first place with the intention that it will be recouped. The video game producer or film producer is only able to do their art because they are able to raise the money to do so.

It's like the monopoly on prescription drugs. If a pharmaceutical company invests $100 million in research and development, doesn't it make sense to give them limited monopoly over their invention for a set period so that they can recoup their costs? We can debate about how long that monopoly period should be or whether there ought to be caps on profit, but that research wouldn't have been done in the first place without the profit motive.

The same holds true for artistic works. If a writer spends two years of his life full time writing a book, shouldn't he be able to make money off that work? In this case, it's not the money of external investors, but rather the opportunity cost of his labor, but it's still the case of people wanting to make a living.

For things like films, the costs to make them are so high that to eliminate copyright entirely would end the business model, and you'd get to watch the cinematic equivalent of YouTube videos at the multiplex - stuff made by people not interested in making a living at it.

It's quite legitimate to debate how long copyright ought to last, or rights for remixing or issues around orphan works, but to eliminate copyright entirely means we would no longer have a professional class of creative types. You eliminate their ability to make a living.
posted by MythMaker at 12:17 PM on January 21, 2009 [2 favorites]


The RIAA's plan is to artificially disrupt that simple equation by making criminals of people who make digital copies. Like marijuana prohibition, it will never work.

No, it's perfectly legal for me to rip my disks to my computer. And if I share a copy with a friend, there's no way for them to enforce their license. They are specifically going after those who share digital files online over the Internet, not everyone who makes copies. They rightly perceive that it is the easy distribution of the copies, not the quality of them, that they are after. They don't even like lower fidelity copies, like a 2Mb mp3, being shared. In the days of tape, they weren't concerned because distribution was still expensive enough to prohibit any large scale commercialization.

What they really don't get is that they could cut prices drastically and compete with the infringing file sharers. I would welcome our new RIAA filesharing overlords with cash and a big hard drive.
posted by Mental Wimp at 12:33 PM on January 21, 2009


Should artists and creative professionals not be able to make a full time living doing their art?

You mean like 99.9999% of them have always not made? It is only the very rare $$$$$ groups that have made a living at their art. And I'm pretty sure filesharing isn't the reason. The ox being gored here are the few that in fact do make quite a handsome living at the recorded music biz and the big companies who make most of the money off of them as well as off the artists who don't make a living off their art. Dragging out the image of the small studio musician cranking out songs in their basement losing their potential $100K/year in sales to filesharing is a little myth the RIAA and their defenders have come up with to attract supporters to their side.
posted by Mental Wimp at 12:37 PM on January 21, 2009 [4 favorites]


Allow me to re-kajigger my above query.

Who makes money from piracy: Downloaders, or the RIAA?

More specifically, which party has netted hundreds of millions of dollars in piracy settlements resulting from a half-decade campaign of extortion?
posted by Sys Rq at 12:42 PM on January 21, 2009 [1 favorite]


And though a now-antiquated law may try to force them to act otherwise, I don't believe that people as a whole recognize a right to control the distribution of a number.

Fine. Feel free to print out your music in ASCII or whatever and enjoy it that way. If anyone gives you any grief, I'll take care of it.

Oh, what's that? You want to enjoy the music, not the number?


Glad we could have this talk.
posted by niles at 12:55 PM on January 21, 2009 [1 favorite]


For things like films, the costs to make them are so high that to eliminate copyright entirely would end the business model, and you'd get to watch the cinematic equivalent of YouTube videos at the multiplex - stuff made by people not interested in making a living at it.

It's entirely possible that digital copying will end the age of big-budget entertainment production as - to use the de rigueur analogy - the internal combustion engine ended the age of horse-buggy manufacture. [Though given the entertainment industry's long history of crying wolf, their own claims along those lines should be immediately discounted.] And I would be sorry to lose things like Peter Jackson's The Lord of the Rings.

But there's no putting the genie back in the bottle. The technology exists, it's effectively impossible to circumvent, and we have seen the last generation who will even debate the morality of using it.
posted by Joe Beese at 12:58 PM on January 21, 2009


I wouldn't steal a diamond, but if I could I'd burn you a copy.
posted by bystander at 1:13 PM on January 21, 2009


it makes sense that the creator should have some form of control over its distribution for a limited time

Yep, unfortunately, this has nothing to do with that. Remember, the RIAA consists of exactly zero artists, and no artists have seen their royalties increase, or be easier to get since the advent of suing file-sharers.

The recording industry used the advent of the cd to restructure an already slanted industry even farther in their direction and now they're doing everything they can to keep the golden goose alive.

As a recording artist myself I am actively seeking alternative business models and looking forward to the day that a song is not treated as a money-shitting machine.
posted by lumpenprole at 1:20 PM on January 21, 2009 [1 favorite]


Riki tiki: you may not agree with the logic, but I don't think the logic is terribly difficult to follow.

The digital "good" has, for practical purposes, zero value. I don't mean "I think it has zero value to me personally". I mean that I can replicate it millions, billions, trillions of times for essentially no cost.

Therefore, when you download an MP3 online, you are "taking" a good that has zero tangible value, and can be replaced for free, almost infinitely. In fact, you're not even taking that copy on the internet, even though it could be replaced freely. You are actually not taking anything, and are only making a perfect digital copy of the source.

The entire fundamental underpinnings of economics has little to do with money, but everything to do with scarcity. When something becomes both free and infinite in supply, regular economics breaks down.

The only way you can get your head around it in the physical world would be to imagine Star Trek replicators. If you can push a button and get a perfect replica of a cup of Swiss Miss hot cocoa, freely and infinitely, then that hot cocoa has zero value. Further, Swiss Miss claiming that you are "stealing" by preferring the free replicator cocoa to buying theirs is absurd, since there is no way to show any direct loss.

This is why this is not "stealing" at all, but actually "infringement". The record companies are not just claiming ownership of the "thing", but also its use. You can only "use" this if you paid them for it, regardless of how you acquired it.

An admittedly stretched physical world example would be if Bic pens sent you a $1 invoice whenever you received a "free" pen. You couldn't use it unless you paid Bic, regardless of how you acquired it.

Or, to further belabor the poor diamond example, it would be like going into a jewelry store with previously mentioned Star Trek replicator, making a copy, and walking out. The jewelry store has precisely as many diamonds as it did before you walked in. Except now you have a diamond that came from nowhere.

So, that's why the economics break down, and why any notions of "stealing" are absurd.
posted by Ynoxas at 1:50 PM on January 21, 2009 [5 favorites]


the RIAA consists of exactly zero artists, and no artists have seen their royalties increase, or be easier to get since the advent of suing file-sharers.

As someone else observed: At least if a listener rips off the musician, they're doing it because they like the music. The record company is just doing it for money.
posted by Joe Beese at 1:51 PM on January 21, 2009


Therefore, when you download an MP3 online, you are "taking" a good that has zero tangible value, and can be replaced for free, almost infinitely. In fact, you're not even taking that copy on the internet, even though it could be replaced freely. You are actually not taking anything, and are only making a perfect digital copy of the source.

Not quite. When you download an mp3, you are taking a good with zero "tangible" value, but definitely nonzero intangible value. Just because an IP good in a digital medium is intangible and non-rivalrous doesn't mean it has zero value, either to you or the creator and distributor. Otherwise, you wouldn't have acquired it, would you?
posted by R_Nebblesworth at 2:02 PM on January 21, 2009


For fuck's sake.

What do you do for a living, people who don't "believe" in copyright? Because I think your salary should be reduced to zero and you should do it for "love."
posted by drjimmy11 at 2:25 PM on January 21, 2009 [5 favorites]


They live on rainbow moonbeams that eminate from Cory Doctrows arse.
posted by Artw at 2:33 PM on January 21, 2009 [4 favorites]


drjimmy11 - Exactly. There are A LOT of people who are in the entertainment business for a living. This is how we feed our families, just like your job down at Burger King, o you who think there should be no copyright.

Copyright helps us keep our jobs, because it means that money comes in for work performed. If software (and that's what we're talking about, whether it's books, or music, or movies or whatever) is given away for free, then we would have to get a new day job, and it would cease to be a professional activity.

Going to the movies would be like going to the local community theater. It's a great thing to go support your cousin who really wants to be an actor, but, generally it sucks.

People like to be paid for their work. The entertainment industry isn't some soul sucking monster, it's a bunch of creative people who'd like to keep being able to pay their rent.
posted by MythMaker at 2:34 PM on January 21, 2009


The RIAA's plan is to artificially disrupt that simple equation by making criminals of people who make digital copies.

...


No, it's perfectly legal for me to rip my disks to my computer.

Not according to the RIAA.

"Making 'a copy' of a song you own is just 'a nice way of saying "steals just one copy"' ..."
posted by mrgrimm at 2:58 PM on January 21, 2009 [1 favorite]


The entertainment industry isn't some soul sucking monster, it's a bunch of creative people who'd like to keep being able to pay their rent.

My worry is the apparent conflation of the creative people, and their interests, and the exploitative leeches and their interests. The vast majority of the money going into the entertainment industry isn't going to those creative people but to the businessmen who have a near-monopolistic control of the means of production and (more importantly) the means of distribution. If creativity were the issue, writers wouldn't be notoriously shit upon in the industry and executives would be clamoring for unionization.
posted by Pope Guilty at 3:01 PM on January 21, 2009


Ynoxas: I'm not having trouble following that argument, and I don't think anyone else here is either. Undoubtedly there's been rhetoric from the RIAA and MPAA equating piracy with theft, but that's not what's going on here. All the anti-piracy arguments I've seen here are saying they're comparable instead of equivalent.

In no uncertain terms: yes, we understand that when you copy a file the original is still there. We constructed our arguments fully knowing that, and it doesn't change anything about our positions.

You're right that traditional economics are based on scarcity. That is indeed the fundamental problem here. A significant incremental cost is necessary as a cushion for the initial cost, otherwise all those fancy economics equations start to get divide-by-zero errors.

That excuses nothing, though. It's not the record industry's responsibility to reinvent basic economics, and they're not obligated to retroactively apply any new economic system to their existing works. I'm sorry if your favorite music is subject to such a flawed system but "I don't think that should be illegal" is not a defense.

On a broader note, just as the RIAA is wrong when they say that every downloaded album represents a $15 loss to them, it's wrong to suggest that a system in which artists don't get paid proportionally to their popularity, or in which downloads have zero value, is realistic. Don't fall into the trap of thinking edge cases can sustain the entire market, or that they'd be desirable if they could. "Pay what you want" was a promotional tool for In Rainbows, not a proof of concept for a whole business model. "Open source" doesn't really make sense for content other than code. "They can give the music away and make their money from live shows" ignores that there are plenty of bands that make great music but suck live (and doesn't work at all for films). And I could write a whole treatise on why "just make it advertising-supported" is problematic at best, not least of which is that I don't want to live in a world where all content is advertising-supported and I doubt you would either.

Yes, all of these are arguments I've heard from people on this topic. I acknowledge that they may or may not apply to anyone in this thread, I'm mostly making the point that this is a Hard Problem and that we're not justified in abandoning the rules of the current system until we come up with a solution far more robust than the ones I've heard.
posted by Riki tiki at 3:18 PM on January 21, 2009


Copyright helps us keep our jobs, because it means that money comes in for work performed.

A musician playing a concert is performing work. A musician collecting royalties on copyright is not performing work. He is exploiting an artificial monopoly on distribution created by a law that thought such a monopoly would be in the public interest.

Even disregarding the abuses that monopoly has enabled, by their massive participation in copyright infringement, the public has made it clear that they consider the free exchange of content a greater good than your particular livelihood.

You may think them mistaken. You may resent them for forcing you into restaurant work. But you will not, as a practical matter, be able to sue or shame them out of doing it.
posted by Joe Beese at 3:30 PM on January 21, 2009 [2 favorites]


What do you do for a living, people who don't "believe" in copyright? Because I think your salary should be reduced to zero and you should do it for "love."

I won't speak for anyone else, but if you get right down to it, I write. This doesn't mean I'm a writer, but that's probably the bulk of what I'm actually paid for. People pay me to write things. Occasionally they pay me to talk to them, or compile Excel sheets, or any number of other things, but the "product" is some sense is nearly always words.

However, I'm not a "writer," and I don't do work on speculation; people pay me (or rather they pay people who pay me), and I write, and they get that writing, and can do whatever they want with it. They can sell it, they can republish it, they can use it as hand towels in the executive washroom. I don't really care, except out of a sense of professional pride.

This model -- labor in exchange for money -- is how the vast majority of people in the world earn a living. It's how the vast majority of people in history have earned a living. It's simple and it works pretty well. (There are admittedly some issues -- getting someone to pay for your time if you don't have a track record can be difficult -- but they're tractable ones.)

Making money by producing products on spec and then monopolizing their reproduction in order to retroactively pay back the investment is the exception, not the rule. It's a relatively modern invention in historical terms, and was dreamt up to deal with the extremely capital-intense nature of early industrial age mechanical reproduction.

You do not need to have copyright in order to have art. You need copyright in order to take art and productize it, turning what is fundamentally a service into a widget-manufacturing industry, with products that can be sold over and over again.

There are obviously specific art forms that are only practical under this sort of speculative model, where the cost of production can be amortized out over many sales, but it is certainly not all artistic or creative output. I think it's in fact probably limited to a subset of art forms that have sprung up relatively recently, like very expensive high-budget movies; it's a list that has gotten shorter over time, though.

Arguing that copyright is worthwhile because without it, we wouldn't have certain art forms that are only possible under a reproductive-monopoly or amortization model (i.e. with copyright) is legitimate, but it's specious to claim that there wouldn't be professional artists without it.
posted by Kadin2048 at 3:44 PM on January 21, 2009 [5 favorites]


The film industry and music recording industries wouldn't exist without it. All you'd have left is MySpace bands and YouTube videos.

Just understand that that's what you're supporting.

For filmmakers, the film is the work. I don't go out and do concerts. If everyone pirates my work, I can't pay my rent.

Most of the people who work in entertainment are just trying to make a decent, middle class living. You're turning an industry that you have no first hand experience of into a monster, when all we're trying to do is entertain you.

Please support our being able to make a living doing this.
posted by MythMaker at 4:05 PM on January 21, 2009


The film industry and music recording industries wouldn't exist without it. All you'd have left is MySpace bands and YouTube videos.

Just understand that that's what you're supporting.


That's a bullshit false dichotomy and you should know it. Copyright has only been around for a few hundred years; so was Shakespeare, the Canterbury Tales, the Divine Comedy, the works of the Renaissance masters, Greek and Roman tragedies and comedies just the low-tech equivalent of "MySpace bands and YouTube videos"?

I'm sorry if society isn't valuing your work as much as you think it should be valued, join the rest of the world.
posted by MikeKD at 4:18 PM on January 21, 2009


People paid admission to go see Shakespeare's plays. He wasn't giving them away for free. The Globe Theatre was a for-profit business.

I make a living working in the entertainment industry. I'm not asking you to cry any tears for me. I'm just saying to have some respect for the thousands of people who work in this industry, trying to make a living, who aren't some bigshots, but are regular people just like you, and would appreciate it if you paid for the work they produce. That's all.

The attitude of fuck you those are the breaks suggest a lack of empathy, and a real short sightedness about the nature of the entertainment business.

When The Lord of the Rings can no longer be produced because people refuse to pay for their entertainment, the world will be a worse place for it.
posted by MythMaker at 4:36 PM on January 21, 2009


A musician playing a concert is performing work. A musician collecting royalties on copyright is not performing work. He is exploiting an artificial monopoly on distribution created by a law that thought such a monopoly would be in the public interest.

Everyone knows that copyright is an artificial monopoly granted by law that allows artists to extract monopoly rents for their work - do you think this is some kind of revelation? It's kind of the whole point of the law.


Even disregarding the abuses that monopoly has enabled, by their massive participation in copyright infringement, the public has made it clear that they consider the free exchange of content a greater good than your particular livelihood.


This only means that lots of people like getting stuff for free when (1) it's easy and (2) they're unlikely to be caught. Do you really think most people have gone through the thought process you describe, i.e. they think they're contributing to the public good, or do they just prefer getting movies and music for free rather than paying for them?
posted by R_Nebblesworth at 4:37 PM on January 21, 2009


And Kadin2048, Labor in exchange for money is how people in the entertainment industry work, as well. If no one pays for entertainment, then the businesses that pay us money in exchange for our work will no longer employ us.
posted by MythMaker at 4:38 PM on January 21, 2009 [1 favorite]


That's a bullshit false dichotomy and you should know it. Copyright has only been around for a few hundred years; so was Shakespeare, the Canterbury Tales, the Divine Comedy, the works of the Renaissance masters, Greek and Roman tragedies and comedies just the low-tech equivalent of "MySpace bands and YouTube videos"?

Many of the Renaissance masters were supported by patrons, and books and plays were not given away for free.

I'm sorry if society isn't valuing your work as much as you think it should be valued, join the rest of the world.

The question isn't over the right valuation of the work but whether creative people have the right to control distribution and duplication of their work at all.
posted by R_Nebblesworth at 4:44 PM on January 21, 2009


Let's back up a couple of steps. Lets go back to before copyright in the US. Works were published elsewhere, and reprinted by media barons with printing presses, to sell on. The only ones making any money were the ones with the presses.

So, we look at the public domain. Art, history, culture, shared stories, scientific discoveries; all of these are what binds us together as a society, and allows us to build on what's come before. Science alone wouldn't get very far if nobody shared their work with the public. Science, culture, art - these all have value. But only when they're shared. You tell me a story, I let you light your taper from mine, and we both walk away with more than we started with.

So, works in the public domain are good. Some people would create anyway, regardless of profit motive - the copyleft culture, linux etc, shows that. But we can ignore them for now, as they'll carry on producing creative works regardless of the monetary reward.

We like the public domain, but people won't create works and submit them to the public, because they can't make a living doing it, only the press owners. So we create a temporary, limited monopoly. Creators are the only ones allowed to distribute copies of their works for 14 years by law, and they can sue anyone who takes their work and reprints it. And at the end of that period, when they've made some money, their work goes back into the public domain, enriching us all. Even during copyright, the public has some rights reserved too, such as being able to sell their copies on freely (that one didn't get codified until later, but it didn't need to be)

Fast forward a couple of hundred years. Copyright lasts 200 years (depending upon the exact type of work). Every time mickey mouse comes up for expiry, ohh, retroactive copyright extension. The public domain simply doesn't exist for any works created less than 50 years ago. Every time anything might go into the public domain, hoards of rich artists pop up and complain about how their work is about to be stolen from them - despite the copyright term being in place before they started.

We have a whole legal system built up around treating what was supposed to be a limited monopoly to enrich the public as property that never expires. We have outright abuses such as laws that make it illegal to discuss how my bluray player talks to my TV, or how to make my own purchased copy of spore install more than 3 times.

We have middlemen that make almost all the money telling people what they want, and acting as a barrier between the public and creators. We're all being screwed, the public domain most of all. But most creators dream of making it big, while it's the executives who mostly get the blow and hookers.

Copyright was founded when making copies was a hard and expensive act, when the only type of infringement WAS infringement for profit - piracy, they called it back then. Now every household in the west has a machine for making near-infinite copies at nominal cost, and a near-zero cost mechanism to share them round the world. Like it or not, respect for copyright is dead.

I'm a pragmatist. The only way we're going to get some types of works, and some types of people to create those works is to pay them to do so. As a culture, the public domain is a highly valuable thing, and it's enriched by having more works contributed to it, and it behooves us to find a way to make that happen.

But don't mistake that, in any way shape or form, as me accepting that the world owes anybody a living doing the job they want to do. I don't get paid everytime someone logs onto the servers I run, or a royalty everytime someone uses a computer I fixed. Plenty of people in my profession could have their job wiped out a the stroke of a pen and watch it go overseas, but they don't get government protection.

Art has value. But it has a lot more when we have a realistic chance of seeing it enter the public domain in our own lifetimes, instead of being packaged and sold like widgets, when it's really not. Copies have virtually no value, but the act of creating them does.

We need to find ways of giving the public domain great works, while also paying people to create them. There are ways; radio and TV survive on advertising, while giving away the works for free. Software can and does survive on providing it as an ongoing service. Most musicians make far more from concerts than they do CDs. Convenience and simplicity and quality has value too. Take netflicks, or itunes, or hell, bottled water. Why the hell do people pay for any of these, when the product is available for near free on the internet (or a tap)? Because you can sell quality and convenience. Or take Baen Books online; they give away loads of ebooks free, and the rest are DRM free. Yet putting their books online for free increases sales hugely, even of the paper copies, and brings up sales of all the others by the same author too. Getting known is a bigger problem than people reading your work for free, when they wouldn't have paid for it anyway.

Copyright is ending whether we like it or not, and we should build a better system in its place that rewards customers, the public domain and gives creators an honest living if they produce something worth having. The alternative of trying to ignore or suppress the march of technology simply will not work any more.

And for the next person that goes on about how copyright should be respected, those who don't are thieves, you're stealing my livelyhood etc - I'll simply ask - When is YOUR work going to enter the public domain, like it's supposed to?
posted by ArkhanJG at 4:51 PM on January 21, 2009 [5 favorites]


No, it's perfectly legal for me to rip my disks to my computer.

Not according to the RIAA.


Well, thank random forces that, at least so far, RIAA doesn't unilaterally get to decide what is and isn't legal.
posted by Mental Wimp at 5:04 PM on January 21, 2009


Good comment Arkhan, though I doubt copyright is "dead" or "ending," it will probably be reformed sooner rather than later, probably through the courts rather than Congress.

I agree that the utilitarian rationale of getting stuff into the public domain is primary over compensating artists. The whole "life of the author ++" stuff is crazy, it should be 20 years from publication or maybe even less IMO.
posted by R_Nebblesworth at 5:05 PM on January 21, 2009


Sorry, I meant the end of copyright as a practical, enforceable measure. I think the legal institution will limp on for a good long time yet. The percentages of people under 20 who regularly infringe is staggeringly high; between 60 and 80% is the last estimate I saw, with 95% or so who've infringed at some point. Rates of 30 and 40 year olds doing so are also rising. With the growth of strong crypto and real anonymity in sight, I think the odds of any enforcement or legal measure being able to bring an end to infringement, or even contain it, are pretty low.
posted by ArkhanJG at 5:28 PM on January 21, 2009


Everyone is saying without copyright all artists would be broke. More accurately they would have to change the way they work if they want to be compensated. Take the Grateful Dead, they allowed tape recording of all their shows. Were they broke? No. They toured incessantly, sold millions of dollars worth of tickets, Merchandise, etc. This was a sustained effort spanning from the late 60's to the mid 90's.

Another example would be Radiohead's album "In Rainbows." They released this album for download, you name your own price. Even though the music was essentially free, they made a lot of money off this album with online sales, sales of the actual album, touring and merchandising.

These are two high profile examples but there are tons of small bands that sell practically nothing in terms of album sales and the band members make over $100,000 per year, each.

What I see as the new paradigm is that a band needs a stellar album as a loss leader, a honeypot to attract people to the real profit center, the concert and the merchandise. Prices for those items will have to go up to reflect their larger share of a bands income, but that is more than fair and I support this in lieu of suing everybody.

In Rainbows was self released by Radiohead. No record label saw a dime of that money. That is what the record labels are really afraid of, becoming white elephants that nobody needs.
posted by jester69 at 5:51 PM on January 21, 2009


jester69: you seem to have missed earlier comment which managed to anticipate your exact points and one of your examples.

But I'll reiterate anyway... In Rainbows proves nothing. It was a release by a band with immense name recognition (that they gained overwhelmingly during their tenure in the big label system), using a distribution method that was rare enough to gain media attention in and of itself. If you think those factors don't hopelessly cloud any conclusion you might draw about "pay what you want" or self-release, then I seriously think you need to adjust your perspective.

Similarly, the Dead (and their descendants) fill a very specific niche in the market. No one ever said that you can't live off live performances. We're saying not everyone can live off live performances. I'm sure you'd retort something to the effect of "well consumers aren't obligated to support a given business model," and that's true, but there's a vast consumer base in the existing model for non-live music and you haven't explained how their taste will be reinforced in your live performance-based system. I assume you're not suggesting that people change their musical taste to fit your preferred distribution system.

As an analogy that also happens to be intrinsic to this argument, would you be suggesting that every film be of the Rocky Horror variety and base their income on that? Do you see how your anecdotal example doesn't scale?

Don't let the flaws in the current system blind you to the faults in your suggested replacements. Taking our distribution models from bad to worse because it bruises your principles to pay for music is some pretty short-sighted behavior.
posted by Riki tiki at 6:29 PM on January 21, 2009


What exactly would constitute evidence to you that the current copyright system hinders creative output and remuneration as much (if not more) than it helps?
posted by Ritchie at 6:46 PM on January 21, 2009


Also, it's worth reading the (free) blog by the guys at Techdirt, particularly Mike Masnick's posts, where he discusses many of these issues (e.g.).
posted by Ritchie at 6:55 PM on January 21, 2009


FREE IS WHEN YOU DON'T HAVE TO
PAY FOR NOTHING
OR DO NOTHING
WE WANT TO BE FREE
posted by Artw at 7:08 PM on January 21, 2009


(And I didn't pay the Zappa estate for that. Me am leet copyfighter striking blow for justice!)
posted by Artw at 7:09 PM on January 21, 2009


Let's just go back in time to the model that was used for most of recorded history. Let's say Stephen King says that henceforth he will work for $1 million per year (or whatever the highest bidder will pay) for ONE PERSON. That person gets all his work, and he hates Stephen King, so he just uses whatever King writes as toilet paper, destroying it as it' written. And hey, he can brag to his other rich friends that he's SO rich that he employs Stephen King as his own personal toilet paper factory.

Stephen King is happy getting wealth in exchange for work. The rich dude is happy because he's saving the rest of civilization from being subjected to the writing of Stephen King and he also gets to brag about how he's doing it. So everyone's happy! Oh, right, except for anyone else who might ever want to actually *read* what King's writing.

In other words, we could just go back to the artist-benefactor model for art, a time-tested model. The artist gets a cushy life, the benefactor gets all the artwork, and the rest of us mere mortals get whatever the benefactor feels like making available to us, if anything. That model works pretty well for literature, music, paintings, sculptures. Maybe not so well for $250 million movies, but hey, we got along without those for thousands of years, and we could easily do so again.
posted by jamstigator at 7:40 PM on January 21, 2009


ArkhanJG - I'm not disagreeing with you that the Sono Bono act and the extraordinary over-extensions of copyright are ultimately bad for society. Having a public domain is a good thing.

However, saying that it would be better to reduce the 70 years after death to, say, the life of the creator, or 20 years, or whatever we agree upon, and eliminating it entirely are very different things.

People on here are advocating the elimination of copyright. That's like eliminating the ability to get a patent. Just because things are sometimes abused doesn't mean that the underlying legal principal isn't for the betterment of society. Because with intellectual property anyone can go and make a copy of it, whether it's a scientific process to make a drug, or a movie or song you can download for free, laws have to be in place to protect the creators of these things so that things will be created in the future.

Who would spend the money to do R&D for drugs if pharmaceutical companies couldn't make some profit? Who would pay $200 million to make 12 hours of the Lord of the Rings if they couldn't profit?

To eliminate monopoly protections for a limited time over intellectual property does society a disservice. I think we as a society can take a good hard look about what's the fairest extension of copyright, but to suggest it ought to be eliminated is unwise.

People ought to be able to make a living from the fruits of their labors. This isn't a communist country.
posted by MythMaker at 7:49 PM on January 21, 2009 [1 favorite]


It doesn't bruise my principles at all to pay for music. I am not making the point that people should make all their money off performances and merchandising, I am saying that is all people will have left to sell if copyright is killed by ubiquitous file sharing.

The Grateful Dead was just an example that you can make a very good living that way. Despite insinuations that I am proselytizing, I am not trying to convert anyone to anything. Bands of any genre that appeal to people with internet connectivity and limited means will have to change or perish. I am not saying this is the way it should be, but guessing that it will be this way whether we like it or not. You can't put the genie back in the bottle.
posted by jester69 at 7:58 PM on January 21, 2009


Who would spend the money to do R&D for drugs if pharmaceutical companies couldn't make some profit? Who would pay $200 million to make 12 hours of the Lord of the Rings if they couldn't profit?

No one. But you're arguing that there can be no profits without patents and/or copyright. If you believe that piracy is the enemy of profit, then you'd expect to see profits for music and film decreasing as piracy increases. That hasn't happened. Instead in recent years piracy and profits have grown simultaneously.
posted by Ritchie at 8:00 PM on January 21, 2009


Full disclosure: I am an artist who makes a living off of copyright.

I do not think copyright should be indefinite. I do, however, think some form of copyright a good idea.

I do not understand the arguments in favor of ending copyright. Why shouldn't I be able to control and license the sale, use, or distribution of my work for some set period?

I understand that this is not a "natural law", but a legal construct. However "public domain" is also a legal construct, as would be "permanent copyright" or "finders keepers losers weepers" if those were enshrined in law instead.

I would appreciate if someone would explain to me why they thought completely eliminating copyright was a good idea, if anyone here does think so (I am not asking for arguments about simply revising copyright law to a shorter period -- that's a potentially sensible argument I understand). The arguments I have seen so far, frankly, seem to boil down to "because I want to and can", "because record companies are big meanies", and "because it isn't actually the other illegal activity known as theft" -- all of which don't actually, you know, make the point.

I'm serious -- does anyone have a serious argument on that side of things? Or, alternately, are all of these threads an awful lot of shouting about a point no one is actually trying to make?
posted by kyrademon at 8:32 PM on January 21, 2009


There's no one POV being represented here, kyrademon. If you found a way to make a living as an artist which was independent of copyright, wouldn't you? Are you certain that there is no method by which you could do so? Have you looked? If you looked, what do you think you would find?
posted by Ritchie at 8:45 PM on January 21, 2009


Ritchie, I do not mean offense, but that seems to be completely and entirely irrelevant to the question I asked. Unless your argument is "copyright should be eliminated because there exist other ways for artists to make money", which is a silly argument so I will assume for now it is not one you are making, but rather that you are raising a side issue.

Seriously, I only want to hear whether anyone has a good argument for why copyright should be eliminated. I am not really interested in getting sidetracked into other discussions.

If you do mean that as an argument as to why copyright should be eliminated, Ritchie, I apologize for misunderstanding and would be happy to debate the point.
posted by kyrademon at 8:55 PM on January 21, 2009


Who would spend the money to do R&D for drugs if pharmaceutical companies couldn't make some profit?

This isn't a good argument, since the vast majority of pharmaceutical R&D in the US is paid for by the feds.
posted by Pope Guilty at 9:00 PM on January 21, 2009


What I'm trying to establish is the same thing I asked of Riki tiki - what evidence do you need in order to be convinced that copyright is unnecessary? If you cannot answer that, it's a waste of time asking people to take random stabs at argument, hoping to find one which will strike a chord.
posted by Ritchie at 9:05 PM on January 21, 2009


I'm also interested in kyrademon's question - what is the argument against the existence of copyright?

Because if people don't actually think it should be eliminated, then all there is to argue is about the length of time that it covers.

But if copyright should be eliminated, why?
posted by MythMaker at 9:06 PM on January 21, 2009


You're the ones arguing for something different from the current regime. If you want change, why? What is your argument, beyond just saying that you'd like your entertainment media for free, which isn't much of an argument.
posted by MythMaker at 9:07 PM on January 21, 2009


I understand that [copyright] is not a "natural law", but a legal construct. However "public domain" is also a legal construct

No, it isn't. That's like saying atheism is a religion. The public domain simply refers to creative works that are not controlled by institutions like copyright law. It doesn't need to be enshrined in law in order to exist. Before the concept of "intellectual property" existed, all creative works were in the public domain.
posted by Silune at 9:21 PM on January 21, 2009


Hmm. All right, Ritchie. I suppose you would need to convince me that without copyright, whatever de facto or de jure system that replaced it would:

1) As well or better, allow creative artists to make a living off of their works (or, alternatively, convince me that creative artists should not make a living off of their works, a much harder argument.)

2) As well or better, discourage imitations, alterations, knock-offs, or substitutes from being marketed as the original (or, alternatively, convince me that there is no problem with imitations, alterations, knock-offs, or substitutes, from being marketed as the original.)

3) As well or better, ensure that profits, marketing, sale, licensing, and distribution remained under the the control of the creative artists (or, alternatively, convince me that it is better for such to stay out of their control.)

4) As well or better, ensure that and further use of distinct ideas such as characters, settings, lyrics, music, design, etc., whether through adaptation to other media, sequels, imitations, or otherwise remained under the control of the creative artists (or, alternatively, convince me this should not be the case.)

5) As well or better, foster an environment in which encourages artistic creativity (or explain why such should not be fostered.)
posted by kyrademon at 9:23 PM on January 21, 2009 [1 favorite]


Silune -- No, not really. The concept of intellectual property existed long before copyright. The concept of "public domain" evolved as a legal principle to codify what intellectual property was all right to use by anyone. Before it was codified, there might have been no *law* against copying a Shakespeare play and presenting as your own work, but it very well could have gotten you knifed in an alley (and, yes, that kind of thing happened.) Public domain -- like fair use -- is a legal means of determining when use will get you knifed (or sued, in the present day), and when it won't and shouldn't. Saying everything was in the public domain before the concept of intellectual property misinterprets the situation that existed before the present day, when it was frequently considered appropriate to settle disputes outside the boundaries of the limited legal system. It is no longer considered appropriate to do so.
posted by kyrademon at 9:30 PM on January 21, 2009


(Oh, and --

6. As well or better, ensures that art is, insofar as possible, distributed to the widest possible audience in the most convenient form the medium allows at the lowest reasonable price. Sure. Has to go with the other five, though, as far as I'm concerned.)
posted by kyrademon at 9:55 PM on January 21, 2009


kyrademon, it's true that the term "public domain" is relatively new, but that doesn't mean that it didn't exist in the past, only that there was no term for it. Public domain has nothing to do with whether you will be knifed in an alley. It has to do with laws, or the lack of them. If a creative work is not controlled by laws, it is in the public domain. That is true whether those laws exist or not. Shakespeare's plays have always been in the public domain. The reason people are no longer knifed in alleys for copying them is that the monetary incentive is gone. It has nothing to do with any change in legal status.
posted by Silune at 10:14 PM on January 21, 2009


There's another, somewhat tangential point usually brought up in these discussions that I don't think anyone has made yet: Open source software would not be what it is today without some form of copyright. People (and companies) contribute to GPL-type projects because they have the assurance nobody can use their work in a manner they do not agree with.
posted by ghost of a past number at 10:31 PM on January 21, 2009


The GPL uses copyright against itself. Without copyright, there would be no use for the GPL.
posted by Pope Guilty at 10:42 PM on January 21, 2009


Here are a couple of arguments for eliminating copyright:

1. It's impossible to enforce. It has always been impossible to stop all infringement (how would you stop someone from copying a book and selling it to his neighbor?), but in the past, large-scale infringement required a large-scale operation, and could be stopped relatively easily. As technology progresses, infringement gets easier and easier, until it becomes effortless. Enforcing copyright law effectively today would mean hobbling the Internet in a way that makes it no longer useful. At this point, copyright law seems more trouble than it's worth, and if it isn't now, it surely will be in the near future.

2. Even if it could be enforced, copyright law seems unfair. Why should artists get paid over and over again for a piece of work, when everyone else gets paid only once? If I build a piano, I don't get money whenever it's used, but if I write a song for the piano, I do. Why does that make sense? Yes, artists should be able to devote their energy to their craft without having to worry about how to pay the rent, but so should everyone else. That's an argument for socialism, not copyright.

There are counterarguments to both of these points of course, and their merits could be debated indefinitely, but those are the arguments as I understand them.
posted by Silune at 11:07 PM on January 21, 2009 [1 favorite]


The GPL uses copyright against itself. Without copyright, there would be no use for the GPL.

I'm not sure I'm getting your argument.

The way I understand things, the primary purpose of the GPL is not to make sure nobody can make money selling software, it is to make sure people have to release the source.
posted by ghost of a past number at 11:36 PM on January 21, 2009


Mythmaker: People paid admission to go see Shakespeare's plays. He wasn't giving them away for free. The Globe Theatre was a for-profit business.

People are still willing to pay for live performances. Your problem is that you don't work in anything with a comparable model to Shakespeare - you only have recorded performances to sell.
posted by jacalata at 2:38 AM on January 22, 2009


I don't get the idea that performances are OK to pay for but because the cost of distribution of content has come down that automatically means it is worth nothing. Or nearly nothing.

I work in business media. When I commission a piece of content I have a bunch of costs - fixed (management) and variable (creating each product, sales commissions). But the cost of distribution of 1 or 100 of my products is the same.

So what? We can make product cheaper, or we can make more product but charge the same price. As it happens, we do a little bit of both. But even if we didn't, it's nobody's business but our customers to tell us how we should be compensated for the risk we have taken and the effort put in. Like the music industry, we're not a monopoly: if our customers disagree with something they can easily walk away from us and to someone else.

Copyright - or some similar contract - needs to exist. Else, there is no business model unless you want the latest track from Britney to contain an ad for Pepsi halfway through. Copyright recognises risk + effort. It may reward some better than others, but unless one is proposing royalties get portioned out equally and the content makers start boning up on marxism, that's life.

Just because my distribution costs have fallen, it hasn't suddenly become free to make. I mean, we don't all barge onto half empty commercial planes, or demand the right to get into someone's car and ride the same route just because it's not increasing their costs in a meaningful way.

The argument around access and distribution as means of disbanding copyright is logically wrong. It supposes:

a) that distribution costs are the be all and end all
b) that just because the distribution costs have gone to zero (or nearly) that it confers a right.
b) that there exists an alternative model, acceptable to consumers and content makers alike.
posted by MuffinMan at 4:48 AM on January 22, 2009 [1 favorite]


...[Y]ou would need to convince me that without copyright, whatever de facto or de jure system that replaced it would:

1) As well or better, allow creative artists to make a living off of their works (or, alternatively, convince me that creative artists should not make a living off of their works, a much harder argument.)


As I mentioned upthread, Mike Masnick on Techdirt regularly highlights creative artists who have done just that. Radiohead was mentioned earlier. Trent Reznor appears to be engaged in a series of experiments in releasing material freely for his last two NiN albums. Jill Sobule financed the production of her latest album through fan donations in exchange for gifts (for a donation of $5000 she would come and put on a concert in your lounge room). Marillion shared their latest album, using the release as an opportunity to get people to opt-in to the band's mailing list.

I don't know what branch of the creative arts you're in, so I don't know if these examples speak to you. Michael Moore released Sicko for free, and it doesn't seem to have harmed his bottom line significantly. There are any number of webcomic artists who release strips for free, and advertise on their website. Homestar Runner is the one that springs to mind most readily as having turned a tidy profit.

A lot of these are experiments, but collectively they demonstrate that there are methods out there of making a living without relying on copyright. Most of the models seem to tolerate the fact that there will inevitably be, yes, free riders. That's the trade-off for reaching a wider audience.

Eventually there'll be a tipping point at which there are so many working artists who have incorporated 'free' into their business that it becomes de rigeur. It's at that point that copyright will be generally thought of as unnecessary. At that point artists still reliant on copyright will be at a competitive disadvantage.

2) As well or better, discourage imitations, alterations, knock-offs, or substitutes from being marketed as the original (or, alternatively, convince me that there is no problem with imitations, alterations, knock-offs, or substitutes, from being marketed as the original.)

Can't speak intelligently to this one. I'd have to give it some thought.

3) As well or better, ensure that profits, marketing, sale, licensing, and distribution remained under the the control of the creative artists (or, alternatively, convince me that it is better for such to stay out of their control.)

You probably don't need to control every aspect of the creative product in order to make money from it. You need control over some aspects of it. Digital goods (for example) are effectively infinite, and the less control you try to exert over their dissemination, the better off you probably are. But there are also scarcities associated with all production (e.g. time, attention, liner notes for CDs, t-shirts) over which an artist can and should exert some control, as these will generate money.

4) As well or better, ensure that and further use of distinct ideas such as characters, settings, lyrics, music, design, etc., whether through adaptation to other media, sequels, imitations, or otherwise remained under the control of the creative artists (or, alternatively, convince me this should not be the case.)

Getting back to point 3, I'd suggest that such control isn't necessary. Sometimes it's downright counterproductive. Flat Stanley, a character from a children's book from the 1960s, has enjoyed somewhat of a revival recently because of the Flat Stanley Project. The Project was started by a teacher - neither the author nor the publisher of the original book had any involvement. Now, while none of the involved parties tried to claim any ownership over Flat Stanley, everyone benefited. Due to the free publicity from the Project, the original author of Flat Stanley started writing more Flat Stanley books. Someone else wrote a musical. There was the inevitable talk about a movie deal. Then for some reason the creator of the project (not the author or the publisher) tried to assert a trademark over Flat Stanley, which the law says he is not entitled to. As a result, the publisher had little choice but to protect their own claim, and as a result the teacher was faced with losing control over the website he'd put considerable effort into. The teacher's fault, I agree, but unfortunate nonetheless, as there's no doubt that because of his work Flat Stanley was dragged from obscurity and became valuable again.

As always on matters like this, Techdirt explains it much better.

Look at this alternative: Garfield Minus Garfield, discussed right here on the blue. The author of Garfield, Jim Davis, had (has) every right to lawyer up and get the website taken down, but instead Davis' publisher has agreed to publish a Garfield Minus Garfield book. Here is what Jim Davis had to say about it:
“I think it’s an inspired thing to do. I want to thank Dan for enabling me to see another side of Garfield. Some of the strips he chose were slappers: ‘Oh, I could have left that out.’ It would have been funnier.”
5) As well or better, foster an environment in which encourages artistic creativity (or explain why such should not be fostered.)

If artists/creative professionals can make money from creative work, that should be sufficient incentive, yes? The real problem is coming up with a system that encourages consumers to part with their money. Copyright doesn't seem to be working, but the good news is that it doesn't appear to matter. There is more copyright infringement than ever before, but also more art, and more working artists. I think any workable system is going to have to recognize that there will always be free riders - people who want the music but aren't interested in your t-shirts, or concert tickets, or fan club - and just take it in stride.

I won't make an argument that infringing on copyright is okay - whether anyone is harmed or not, it's still illegal. But the I think the best approach is to ignore whether or not it's right or wrong and simply accept that it will happen regardless of how draconian the laws are. The economic principles that underlie the current situation are pretty basic and well-understood - pricing pressure from competitors will force the marginal cost of digital goods to zero, forcing you to find alternative methods of recouping your fixed production costs. It's only a matter of time before new methods of making money from infinite digital copies are devised and become generally accepted. It's probably better to be on the forefront of that rather than play catch-up.

None of that means that you have to change. You can try to make a living as an artist based on rigorous enforcement of copyright in order to create artificial scarcity, but the pressure is on, and economics is against you - who really wants to be the last musician/film-maker/photographer charging for every download when all the others are giving stuff away for nothing?
posted by Ritchie at 7:24 AM on January 22, 2009


Ritchie - with regards to point 1, giving away something for free and giving up copyright for something are entirely different things. Homestar Runner may make money by giving away their shows for free and having advertising (after all, that is the business model of broadcast TV, and it's been working since the 1940s), but if there was no copyright, then everyone else in the world could just make a copy of those same files, put them up on the website, ALSO have advertising, and make money off of work that they did not produce. And there would be NOTHING that the creators of Homestar Runner could do about it.

That is what copyright protects. If I make something, I want to be able to choose who is going to make money off of it. I ought to have legal recourse against scumbags ripping people off and profiting by it.

As MuffinMan pointed out above, if there's no money to be made on making creative things, then product placement will be the only way to make money. So, if you're somehow upset that commercial interests have destroyed the purity of giving art away for free, just wait till there's a Pepsi ad in the middle of every song.

It may well be that a lot more media are given away for free, with advertising being a major part of income generation, but that still doesn't mean that the creator shouldn't own copyright to their works. If I spend years of my life coming up with something, and take the financial and professional risks to make it and put it out into the world, why shouldn't I own it?
posted by MythMaker at 11:35 AM on January 22, 2009 [1 favorite]


The argument that copyright is impossible to enforce isn't a worthwhile argument against it. It's impossible to prevent any number of crimes and/or torts, but we don't get rid of the laws that make them crimes and/or offenses subject to civil suit because of that.

If this argument really means "society no longer believes in copyright to the extent that it should be struck from law", that's a different argument and should be made separately. I'm not sure I'd buy it without a lot of evidence--and I'm not sure downloading copyrighted music without compensation alone is that evidence, because it's entirely possible that people may do that and still believe copyright is a worthwhile principle--but it's an argument that deserves separation from the idea that copyright is impossible to enforce.
posted by immlass at 12:15 PM on January 22, 2009


The RIAA does not serve the interest of musicians, but rather the major labels. It is the major labels. It's composed entirely of multi-billion-dollar multinational behemoths.

Most musicians on RIAA labels make the bulk of their money from touring (i.e. work), not record sales. Recorded music serves the musician mainly in terms of promotion.

In many cases, the musicians themselves must pay for the production and promotion of their recordings. Alternatively, they are given an advance from the label which is then deducted from their painfully meager portion of the eventual sales profits; in such a scenario, if the album sells poorly, the band owes the label money. This happens a lot, particularly since the advance is often huge in order to pay for the "big time" producers and "top of the line" equipment.

When a recording fails to sell, the label drops the artist. They don't, however, drop the copyright on the recording, so if the artist finds another channel to major success, the label can re-release the recording and make a mint, having contributed nothing to the intellectual property.

The RIAA (Sony, Warner, Vivendi (Universal), and Terra Firma (EMI)) and MPAA (comprised of Disney, National Amusements (Viacom), News Corp (Fox), Sony, Vivendi, and Time Warner) are essentially pimps. If you want to work on their corners (television, radio, cinemas), you have to work for them. The internet is outside their dominion, and they don't like that. Artists should.
posted by Sys Rq at 2:13 PM on January 22, 2009 [1 favorite]


...which is all just to say, regardless of where you stand on the copyright issue, know that the RIAA and MPAA don't give a shit about starving artists.
posted by Sys Rq at 2:16 PM on January 22, 2009


As far as I can tell, Ritchie, your argument rests on the following points:

1) Artists can (and probably should, and inevitably will have to) make a profit from a different distribution model from pay-per-use.

My thoughts: True ... but irrelevant to the argument. Different distribution models such as the ones you recommend are perfectly legal under copyright law. And pay-per-use is actually doable (although I will admit in some cases technically more difficult for some art forms) if copyright law vanished tomorrow. Your argument actually seems to be that some forms of art will naturally evolve away from a pay-per-use distribution model. That sounds reasonable -- it's happening with newspapers (which is causing many problems for that medium, but it does seem to be an inevitable progression.) But it is not an argument against copyright; it is an argument that artists should (or will have to) change their profit models in a way that is perfectly doable under copyright law, and which has been the norm in some art forms, like television, for decades. And if copyright law were gone, artists would not be forced into this model, any more than they are forced away from it with copyright present. And in fact, if you are right, there is no need to change copyright law at all, as a natural evolution of distribution models will take care of the problem for you.

2) Imitation and adaptation actually benefits artists by promoting the original work.

My thoughts: Again, true, but I'm not sure it really makes your point. Everyone knows that a movie adaptation of a book, for example, will increase sales of the book. But the question isn't whether or not imitation and adaptation is a good or bad thing -- it's the degree of control the original artist should have over imitation and adaptation. You seem to believe (as with the Flat Stanley example) that allowing an artist control over their creations is a ticket for letting them louse things up for everyone. My opinion differs. I think it's good that an artist can (if they want to) get some money directly from adaptations of their work, and can to some extent control the nature of those adaptations. Copyright allows for this; lack of copyright does not.

Some thoughts --

As MythMaker also points out, without copyright, work can be taken directly and sold without attribution as someone else's. You say you have not given this point thought and cannot speak to it. This is a *critical* point, arguably the crux of copyright law. It really needs to be discussed in any reasonable dialogue about copyright.

However, from what has been said, I am beginning to suspect that the true argument here is actually a different one than it appears. I think this may be an argument over who "owns" art.

The anti-copyright argument seems to be that no one owns art, and therefore it is de facto the possession of the audience. Anyone who wants should be able to copy, alter, adapt, re-use, or re-sell it as they see fit.

The pro-copyright argument is that art is the possession of the creator. They made it, and should be the final arbiter of whether and when it is copied, altered, adapted, re-used, or re-sold. The crux of this argument is in fact, the one that the anti-copyright side likes to bring up -- a work of art is *not* a chair. It is not utilitarian. It is a carefully constructed intellectual creation, and it should not be altered without careful thought and prior permission.

This point of view is that art is not your possession when you "buy" it. You may own the physical book, the physical CD, the set of digits, the DVD, and you can do what you like with them in your home -- break them, alter them, paint on them, change them. But you do not own the art itself that is encoded on those things. That is the possession of the artist, who has essentially charged you (or not, if it was free) for a ticket -- a license to come view and enjoy their work. But the work isn't yours.

And this point of view says that if you claim that work as your own and try to sell it ... or if you change that work without permission and distribute it ... or if you make a work largely based on that work without permission and market it ... or, yes, if you copy that work and hand it for free to people who haven't paid for their ticket without permission ... then you are using something that is not yours to use.

Now, the distribution of some forms of art can (and likely will) change as technology evolves. The question of how and when this ownership eventually passes out of the hands of the original artist (no one lives forever) is one that has been debated in law, and I personally think it should go to the public domain rather than to heirs, a corporation, or the government. And I understand that all art is to some extent derivative, so there must be defined limits on exactly what an artist can "own" and what is free for everyone to use (i.e., a musician can copyright a tune, but not notes themselves.)

But I feel that my art is mine. I have the right to say how it gets distributed, not you. I may or may not agree with you, but I feel that I should get to make that call. And if you disagree, don't use mine -- make your own.
posted by kyrademon at 2:34 PM on January 22, 2009 [2 favorites]


I do not see how one can support both copyright and the RIAA/MPAA. The whole point of both organizations is that control belongs not to the artist but to the owners of the distribution networks.
posted by Pope Guilty at 2:56 PM on January 22, 2009


(You can chalk me up for loathing the RIAA/MPAA, too. I just don't get why the concept of copyright gets a bad rap along with them.)
posted by kyrademon at 3:08 PM on January 22, 2009


kyrademon: The RIAA and MPAA have everything to do with people questioning copyright in the first place. It's their actions that's got the anti-copyright crusaders' reactionary dander up.

To the **AA, Intellectual Property is property first and foremost, property is money, and money is power.

Now, personally, I'm in favour of a severely pruned version of copyright. To me, Intellectual Property is information, information is knowledge, and knowledge is power. It seems to me that no matter the medium, the sole purpose of IP is that it be shared. I'm anti-plagiarism and pro-royalties, but adamantly pro-Xerox and pro-mixtape too.

I don't think anyone is suggesting copyright should go away entirely, only that it should be reexamined and carefully modified in a manner contrary to the **AA's wishes.
posted by Sys Rq at 6:13 PM on January 22, 2009


Free
Free
Free
I am a spoiled child who has always gotten what I want and I want free music (and movies). If you deny me this you are a hateful parent. Harrumph. I don't care about your silly Constitution. Copyright is bad, very, very bad and it makes me sad and mad when you punish me with it. Why aren't you a nice parent?
posted by caddis at 6:47 PM on January 22, 2009 [1 favorite]


One way all of this may be fixed is through a system where no one really "owns" entertainment media at all. Kevin Kelly just wrote a great article about it. If all media is essentially rented, with some kind of monthly fee, and percentages of that fee go to artists, then the whole issue of piracy will essentially disappear.

Why download things and have them take up space on your hard drive, when, with the Internet, you can just rent EVERYTHING at all times.

Copyright doesn't have to end or change in any way. It's all about licenses and rentals. It makes a lot of sense.
posted by MythMaker at 8:15 PM on January 22, 2009


immlass: The argument that copyright is impossible to enforce isn't a worthwhile argument against it. It's impossible to prevent any number of crimes and/or torts, but we don't get rid of the laws that make them crimes and/or offenses subject to civil suit because of that.

That's true to an extent, but I think that the question of whether the difficulty of enforcement is important depends on the purpose of the law. Some laws have as their main purpose the punishment of individual offenders. These laws still serve a purpose even if the vast majority of offenses are not punished. Copyright is different. The main purpose of copyright is not to punish offenders, but to ensure that the owners of works have some control over those works. If we can no longer ensure that, and in the age of the Internet I don't see how we can, then copyright no longer serves its purpose.

MythMaker: The idea of a monthly fee for access to all copyrighted media is interesting, but I don't know if it would cause piracy to disappear. From a pirate's perspective, why pay a monthly fee when you could download things for free? The only way to eliminate that incentive would be to make the fee mandatory for everyone, and that doesn't sit well with me. If it was tied to income or wealth, that might be better. And it would only work if all (or almost all) media was available through one system. That would be quite a project. Still, definitely something to think about.
posted by Silune at 10:46 PM on January 22, 2009


But why go to the trouble of stealing something when your monthly rental gets it to you for effectively free. It would be like paying your cable bill - it's just a base amount of money you pay each month, and as a result of it you get unlimited access to all media on demand at all times.

It makes piracy pointless. Sure, some people wouldn't pay, but most would. Why go to all the trouble of finding the torrent and downloading it, when it's just already there?
posted by MythMaker at 11:21 PM on January 22, 2009


Inertia may be preventing its adoption, but the entertainment industry would drool over this model. Parts of the software industry have been trying to push it for ages, since it lets them sell you the same crap again and again, forever. Instead of having to make up new hits every few months and spend money on marketing to convince you to go to the store and give them money for some synthesized plastic crap, they just sit back and collect a couple of bucks per month from everyone, forever.
posted by ghost of a past number at 11:36 PM on January 22, 2009


Netflix's streaming video is somewhere where they are already trying this kind of rental vs. purchase model. If you can watch, at any time, 12,000 movies out of your Netflix box, and this comes included with your DVD rentals... why rent a physical DVD at all?

We're moving to a model where physical objects being sold, like CDs or DVDs, are simply a historical footnote, and all you get are bits. So why not use the Internet as the distribution medium, charge a flat rate, and share that money with the content creators?

It works a hell of a lot better than suing people.
posted by MythMaker at 12:38 AM on January 23, 2009


The anti-copyright argument seems to be that no one owns art, and therefore it is de facto the possession of the audience. Anyone who wants should be able to copy, alter, adapt, re-use, or re-sell it as they see fit.

That may be the anti-copyright argument, but it is definitely not my argument. I'm completely on the fence about who owns what. Copyright law wasn't built out of the belief that ideas are property - it is simply a mechanism for granting limited and temporary monopolies in certain contexts that serve the common good. If we returned to that very sane and sensible principle, I'd have no objection to copyright whatsoever.
posted by Ritchie at 2:11 AM on January 23, 2009


We're moving to a model where physical objects being sold, like CDs or DVDs, are simply a historical footnote, and all you get are bits. So why not use the Internet as the distribution medium, charge a flat rate, and share that money with the content creators?

It works a hell of a lot better than suing people.


I'm glad we agree that suing people is not the way forward, if only because from the RIAA's side it has been a comprehensive failure. They haven't won a single case that has stood up on appeal, and they've wasted a ton of money and generated a ton of bad press in the process. They should stick to lobbying.

There are all sorts of models out there that attempt to satisfy the (huge) consumer demand for music and movies and ensure that the creators get their due. What should not happen is for the government to try to guarantee the success of one of those models by anointing it with favorable legislation, which is where copyright has headed. I am most emphatically not a free-market free-for-all cheerleader, but this is one sector where government intervention has not improved matters.

(We don't have Netflix in Australia, although I wish we did. We do have businesses that rent DVDs through the mail, but they are pale imitations.)
posted by Ritchie at 2:30 AM on January 23, 2009


I think artists and appreciaters of the art are on the same page here. Most of the argument is semantic: "doing away with copyrights" =/= "stop the legal harassment of downloaders", and it is the latter that hurts both consumers and artists (and probably **AA as well, since it effectively distracts them from redeveloping their business model to a more sane one).
posted by Mental Wimp at 9:56 AM on January 23, 2009


1. Most of the current models espoused by Techdirt and the like are anecdotal evidence individual musicians eeking out a living. Most of the other examples, like Homestar Runner, are still heavily based in current copyright. The free comics are there to sell the DVD, CD, and video games, which are not given away for free. As was mentioned in a previous thread, in mediums where the cost of creation exceeds that which a person can support get made, like a movie, things don't get done. We have music.metafilter.com and not movies.metafilter.com for a reason.

2. Most of the people on the copyfighter are techno-libertarianists, that the free market will magically come up with a model for people to make money off of free copies of music.

See:

It's only a matter of time before new methods of making money from infinite digital copies are devised and become generally accepted.

This is similar to most long term economist predictions. It may be true, but the circumstances and side effects that occur because of it may not be to anyone's liking. In the long run, free trade increased the economies of both countries. In the long run, however we're all dead. The wholesale destruction of such engines of culture may take years to recreate. And while these models keep getting pushed, they seem to be much more limited to various mediums (music), and peppered with enough examples of people clear disenchanted with it.
posted by zabuni at 3:40 PM on January 23, 2009


If I may:

I think whatever you may think of the RIAA, if you download, you have to accept the fact that you are breaking the entertainer/entertained agreement of "I provide you with my creation and you give me money for it". You cannot rationalize your way around that.

Once you start from there, you can bring up hypotheticals such as: "If a CD costs nine dollars and concert tickets cost 18 dollars, if I download Band X's CD illegally, but pay money for a ticket to their concert, am I supporting the band more than someone who legally bought Band X's CD but didn't go to their concert?"

Actually, you might be doing the band a favor if you download their CD illegally, pay money to go to their concert, and then give your nine dollars to the band personally, or send them your nine dollars in certified mail. You'd certainly be giving them a larger share of the CD than their label would ever give them.

With other media, it's a little trickier. The eight dollars you spend on a movie ticket is divided up between hundreds of different people who worked to put that movie in the theatres. Most game developers aren't exactly living in the lap of luxury.

Speaking of games, I can give one example of a different sort of ethic in copyright in the form of the Touhou series. ZUN, the games' creator and programmer, works full time for a larger developer and makes these games in his spare time. He's said in interviews that he recognizes the game has a lot of western fans, most of whom downloaded the games from file sharers, and has said he finds it understandable in light of the fact that the games aren't distributed outside of Japan. He's also said that he doesn't mind doujin works (derivative products that use themes, images, music or symbols from somebody else's work) of Touhou so long as it's clearly labelled as doujin, and that it isn't massively promoted. But again, that's ZUN's choice to make.

I bring up ZUN as a way of pointing out that there are other models we can draw from when it comes to the entertainer/entertained agreement. Litigating file sharers isn't working. I'm happy to see new ideas being discussed.
posted by Marisa Stole the Precious Thing at 4:07 PM on January 23, 2009


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