Tuesday, January 24, 2012

Techno-Libertarianism and Online Piracy 

With the recent hype over the Stop Online Piracy Act and PROTECT IP (Yes, that's an acronym. It stands for Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property...Act.), the issue of piracy has gotten a lot of focus from a lot of people that don't understand the Internet, or have any idea what people actually do on it. From the way I'm sure the MPAA and RIAA have described it, it's all Facebook, cat videos and stealing. While downloading a licensed program or copyrighted material for free is unethical and essentially the same as shoplifting, there are moral grey areas.

That ultimately the thing you're paying for when you buy copyrighted creative works or software is the license to use it. That's the item worth $10 or $20 or $60. The data took investment to create initially, but in a world where you can copy literally any piece of data endlessly at zero cost even to the producer, the actual zeros and ones become worthless. By this logic, a Beatles CD is worth essentially what a blank CD costs. It's the master tapes that are worth millions. DVDs have essentially no value, but the original movie, say Red Cliff is worth $80 million. So why bother paying for anything if digital distribution is free and traditional distribution costs cents per unit? Because the license to use it has lots of value. I pay for the right to use the data on the disc, subject to any End User License Agreements.

After I pay this money, however, the data I paid for is mine, and I can do what I want with it, and the first thing I WANT to do with the data is create a backup. I'm going to take the Beatles CD I just bought and I'm going to copy the data onto my computer. That way if I lose the CD, I still retain the license and the data that came with it. Hang on, though. I have a friend who just sent me an IM asking if he can have a song from it, since it's the only song from Rubber Soul that he actually likes. I take the song and upload it into the chat client, which he downloads.

Now we're both felons. At least under SOPA, PIPA, and a new Act called ATCA.

Now, what's the difference between doing this, and what you did as a kid when you biked over to your friend's house to lend him the record? From the perspective of human experience, not a whole lot, except for maybe 10 minutes of biking, replaced with 10 minutes of staring at a progress bar. But from the perspective of The Beatles, we effectively multiplied their license, which is the same as shoplifting a single out of the record store.

Okay, time for another example. What if my parents bought me a video game when I was a kid, and 16 years later I wanted to reminisce and I downloaded it onto my computer? Is that morally acceptable? After all, the data was already paid for, 16 years ago. What am I supposed to do, go on Ebay, pay $600 for a "vintage" Super Nintendo and an ancient cartridge of Super Mario World that probably doesn't work even if I blow on it for 20 minutes? No, I'm going to download it guilt-free, because I owned the game 16 years ago. It's my data, I just lost it for awhile, but The Pirate Bay helped me find it again.

The same logic can be applied to other things too. What if I've bought Firefly and Serenity on DVD three times and I keep losing the discs because I'm just clumsy like that? I've already paid for the license three times over, so is it morally acceptable for me to download a free copy? What if I bought MS Word, installed it on one computer, but I had to install it on another computer and I lost the discs? Microsoft actually HAS a license number that you can enter on their website to download a free copy of the software if you need it on another computer, so I don't even have to go to jail if I need to write an English essay.

Microsoft's method of giving you a license containing a limited number of activations is a good one. What would be even better is if they followed Valve's example with the program Steam. Steam is iTunes for video games. They have an online store where I can pay to download games literally as soon as they release at midnight. Not only is it wonderful from a distribution standpoint, as I don't even have to leave my chair, but Steam pulls double duty as an automatic backup. If my computer breaks and I have to buy a new one, all I have to do is install Steam, sign in to my account, and I have access to any game I've ever bought. This isn't some "has to be connected to the Internet at all times" kind of crap either, this is "download and play whenever." This is the perfect method of distribution. It's actually better than iTunes because iTunes doesn't back up your songs, as it is prone to reminding you. Valve has said that their piracy issues are almost non-existent because their method of distribution is so convenient. Steam is also a community of players, so any Steam game that you pirated illegally will not be able to access multiplayer services, which is increasingly becoming a more important feature in video gaming.

Now step back for a second, because I'm about to blow your mind. What if Universal, and MGM, and Miramax all got together and made a program where you could buy movies to keep, and they would keep a backup for you so you could download a new copy if you ever needed it? Well, they could do it. Instead, they're trying to bribe Chris Dodd and all of Congress to write a law that would make me a criminal. They know they could spend their bribery money to start a company to distribute their material, which they think is worth millions, over the Internet. But that's not why they're pushing the bill so hard.

What they're actually threatened by is the huge amount of independent enterprise that the Internet creates. The record companies are freaking out because it makes their entire business model obsolete. They don't hold nearly as much bargaining power over bands because the bands can just distribute their songs over the Internet through Bandcamp or even Myspace, and become famous and successful without their sponsorship. Justin Bieber got his start doing cover videos on YouTube. With SOPA, PIPA, and ATCA they wouldn't even need to provide evidence of piracy in order to get a website shut down, and Justin Bieber retroactively becomes a felon. Hey wait a minute, maybe these bills wouldn't be so bad after all.


By Blogger Aegon01, at Tue Jan 24, 12:28:00 PM:

Oops, sorry Anon Attorney I accidentally deleted yours when I was trying to remove mine. I'll reproduce it as best I can.

"After I pay this money, however, the data I paid for is mine, and I can do what I want with it..."

Emphatically no. You own the CD, but you do not own the data on it. You can do with it as the EULA says you can, or if none is given, then the copyright owner maintains ownership.

I stopped reading after this point because anything based on this false premise is incorrect.

-Anon Attorney with 20 years of IP Law.  

By Blogger Aegon01, at Tue Jan 24, 12:48:00 PM:

The law is wrong and obsolete. It needs to change to accommodate this new, wonderful technology we have.

I know for a fact that it's legal to make backups in the form of putting your content onto a computer. I remember hearing about a case related to iTunes, because otherwise iTunes has done more to help piracy than The Pirate Bay ever has.

The entire point of my post is that for the first time ever, consumers can actually manipulate the data in a book, a record, or a movie thanks to the wonderful technology that we have. It would be a huge mistake to stifle this creativity for the sake of archaic law.  

By Anonymous Anonymous, at Tue Jan 24, 02:37:00 PM:

Far be it from me to question a practicing IP attorney, but it's not quite true that the rightful owner of a copy of a work is at the mercy of the copyright owner or the license agreement. 17 U.S.C. 109 still gives the owner of a copy second sale rights. While some courts have drawn a distinction between license and sales in the context of the first sale doctrine (wrongly in my view), the license vs. sale debate only really bears on software. I've never bought a CD that had a EULA, nor am I aware of any court that has found a CD EULA binding.

And, of course, the fair use defense to copyright infringement remains available for a fairly large swath of legitimate uses a person might contemplate. Whether the copyright holder could also sue you for breach of contract if your EULA prohibited fair use isn't really clear to me. If they did, what would be the damages? By definition, there is no infringement since the use is fair, so the astronomical statutory damages aren't available. Would a court really enjoin a fair use because of a boilerplate provision buried within the archetypical contract of adhesion? I'm not a lawyer, but that seems unlikely.  

By Anonymous Anonymous, at Tue Jan 24, 04:50:00 PM:

@ Aegon

No worries. Your reproduction was not wholly accurate but it was close enough for government work an internet boards.

>> The entire point of my post is that for the first time ever, consumers can actually manipulate the data in a book, a record, or a movie thanks to the wonderful technology that we have. It would be a huge mistake to stifle this creativity for the sake of archaic law.

Advancing technology actually makes a good argument for strengthening copyright laws, not diluting them. At a philosophical level, copyright laws exist to protect the interests of creators of literary works, many of whom don't want their productions to be sampled, copied, or otherwise morphed.

Copyright laws had their formal genesis in response to the invention of printing press, which made reproduction of an author's work relatively inexpensive for the first time in history. The fact that digital technology has dropped reproduction costs to near-zero really calls for strengthening copyright law, not weakening them.

You might want to brush up on your law and legal/economic history before wading further into this argument . . .

--Anon Attorney (who is having some fun watching Romney melt down)  

By Anonymous Ignoramus, at Tue Jan 24, 05:48:00 PM:

"Fair use", as noted above, may provide answers. This is a flexible common law exception to copyright. It's quite "generous" in allowing parodies, for example.

The takedown of megaupload may show that the new statutues were unnecessary after all. I only discovered megaupload recently. Damn!

Big Entertainment has always resisted, but without the new channels that have evolved they'd be starved for revenue.


@ Anon Attorney (How's it going in Denver. Tebow fan?)

Latest on Romney is that an open convention -- or an orchestrated process to open the field -- isn't so crazy after all. Andrea Mitchell just reported that a "senior Romney advisor" told her it will happen if Mitt loses Florida. Let us pray.

Not being FOR Romney isn't being bigoted. No more than not being FOR Obama was (is) racsist. I'm not against Mitt because he's Mormon or rich. I'm against him for lots of other reasons.

Mostly for not having political talent. If Mitt had it, being Mormon and rich would be an asset. Compare: Obama was marvelously effective at turning an exotic personal narrative into an electoral asset. His middle name is Hussein, for fuck's sake, and he still got lots of crackers to vote for him. That's talent.  

By Anonymous Anonymous, at Wed Jan 25, 08:19:00 AM:

@ Ignoramus,

It was a Cinderella season, and I've never seen the city so fired up about football. Tebow has a lot to learn, but he is incredibly fun and exciting to watch. And what a role model for kids . . .

I have nothing personal against Mitt either. I doubt whether any of the candidates can beat Obama, but Mitt will lose spectacularly, will brand the Republican party as the protector of Wall Street billionaires, and will cause tremendous damage down-ticket.

Romney as a candidate indicates to me that the conservative movement within the Republican party that Goldwater started and Reagan nurtured to life is now dead, replaced by cronyism and an obsessive dedication to tax cuts for the wealthy. I blame the Bushies.  

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