I Think My Copyright Argument Is So Powerful That It's Not Necessary To Talk About It

“You say Copyright is Theft, They Say You Get What You Deserve”



Both these statements are wrong. These two common ‘copyright’ arguments are as unhelpful as Rick Giles’ infamous line shown in the video above. Here’s why:

1. Copyright as Theft

Let’s start with the corporate fat cats’ stance, courtesy of Fortune writer Roger Parloff and his disclaimer (Fortune's publisher, Time Inc., is owned by Time Warner, a corporation whose main business units are copyright-based.) commenting on the United States Department of Justice’s actions against Megaupload and its founder, Kim Dotcom:

In the real world, suppose Macy's opens up a department in its store, which it calls eStolen Goods," he said.  "For them to say, 'Well, that's only 50% of our business.  Fifty percent is completely legal' -- well, that's laughable.  You're not allowed to commit crimes."  Yet under the Betamax ruling and the DMCA, Cotton's hypothetical actually understates the outlandishness of the situation online today.  Even assuming that 90% of the activity on Megaupload was illegal, many top-flight lawyers and probably most law professors would insist that there's nothing anybody could or should have done beyond filing another pointless DMCA notice.

This whole analogy illustrates an inherent lack of understanding of copyright infringement.  Copyright infringement is unauthorised copying, not unauthorised taking or “stealing.”  In fairness this analogy does not explicitly compare theft and infringement, but the writer’s emphasis of the analogy and general tone implies this.  It is also prevalent in the corporate entertainment industry, stated no more obviously than in its mantra:

you wouldn't steal a car,
you wouldn't steal a handbag,
you wouldn't steal a television,
you wouldn't steal a movie.

But let’s look further.  Copyright is an intangible form of property, untouchable so to speak.  This means you can’t technically steal it, as you can't physically take it and deny the owner from using it.  This denial of use is the moral concern which underpins the crime of theft.  Therefore the solution is not just about securing access to copyright material.

Rather, the moral concern of unauthorised copying lies in diminishing the intellectual property owner’s ability to economically exploit their property, a right they are granted by virtue of the labour they exerted in its creation.  The difference is quite pertinent.

Using this ‘infringement as theft’ metaphor simplifies illegal (not necessarily criminal) conduct whose illegality and underlying laws are incredibly complex.  It’s as simple as claiming that all record companies are evil and that as such downloading copyright-infringing material is justified.

2. You Get What You Deserve 

Now let’s take your annoying 16 year old cousin’s argument:

Piracy is not wrong because record companies are evil.  They killed Kurt Cobain, and left him with nothing but a cleaned and polished version of In Utereo.

In other words, piracy cannot and will not be controlled.  People will forever demand free music.  Get over it.  You deserve it.  Corporations are the worst.  Regardless of a more nuanced argument that artists could distribute works for free and live solely off other sources of musical revenue (e.g. touring/merchandise) without a viable distribution model, simply doing nothing and accepting the death of the recording industry is not the answer.  I think we can do better.

3.  You Are Both Wrong - But Concerned About the Same Thing 

Both arguments are premised on the ideal of the artist being rewarded.  How we get provide artist's with economic reward is a difficult question, the answer is simply more complex than these arguments suggest.  It is very easy to focus on different views on copyright ideals.  It’s also quite easy to write eloquently on the matter thanks to the clever political labels of the copyright and copyleft.[1]

Rather, these complex issues of ideology should be ignored and the underlying concern of artists’ economic exploitation focused on.  Crucially, Parloff in his Fortune article dismisses debate about the length of copyright[2] and the lack of legitimate distribution alternatives,[3] as though they are unwarranted counter arguments.  In fact both have an important role to play in rewarding artists.

This issue is twofold, namely concerning access to copyrighted works and the rights of copyright owners.

(a)  Access to CR Material (Business Models)

The inextricable link between these two arguments is the absence of any viable business model to access digital copyright material of all kinds.  The issue is how to address both the fairness and efficiency of rewarding artists for their endeavours and providing consumers with reasonable access to copyrighted works.

This is why the argument that corporate distributors should have to look harder at legitimate distribution models is so strong, because consumers aren't "breaking and entering", but rather seem to be going to the easiest place of access.

Currently, the easiest point of access for copyrighted work often does not economically reward the IP owners or artists (i.e. illegal downloading platforms).  If there were legitimate, engaging and comprehensive services, the issue of illegitimate sources would be mitigated.

Many people would use them as alternatives even if they had to pay, if they were convenient and could meet consumer demand.  Alongside providing these legitimate access points, efforts are still needed to stop the illegitimate access points.  Indeed the latter is made much easier by doing the former.

The lack of suitable alternatives makes consumers disrespect copyright even more.  For example if I attempt to view a copyrighted tv show through legitimate online streaming services, but am told “We’re sorry but you cannot access this content in your region”, my reply is likely – yes, I can!  The advances in technology mean I can access this work, likely for free, with fewer restrictions than via existing legal sources.  Music and movie suppliers are no longer selling CDs or DVDS, and consumers expect more from digital media.  Previous practices such as geographically limited releases/whole album sales/RRPs are no longer acceptable given the illegal access alternatives.  This means that innovation on the part of copyright owners is necessary.

Obviously providing legitimate and innovative supply sources for copyright works alone is not the answer.  The obvious counter is that people will always choose free.  However, regardless of your faith in people to “do the right thing” – shouldn’t we at least give them a choice?

(b)  Rights of CR Owners and the Public

Typically copyright laws generally favour corporate interests, and are constantly being reinforced with strict limits and outrageous(often implemented without considering whether these laws are actually enforceable) (example Lessig – Simpson’s clearance).  Such changes are controversial and many people are now, and justifiably should be cynical about copyright.

The dramatic arrest of Kim Dotcom in a carefully choreographed police raid wasn't  the smartest thing to do either.  People sympathise with him, not only because of this and that they get "free music", but also because of the issue of the ease and fairness of access.  Regardless of it’s illegality as a service Megaupload does not discriminate access to suers based on location (e.g. as per physical releases)

The shift into the digital media environment is a change of such significance that the “public bargain” behind these rights needs to be rethought.  Lawrence Lessig uses the example of land property ownership, in respect of which it was once thought that “common law ownership of the land extended to the periphery of the universe.” [Lessig Free Culture at 18]

However, the advent of air transport meant that reasonable limits on land ownership were required (i.e. you do not own airspace).  For physical property such as land, nothing has changed much since then.  The law is settled in the protections it provides (e.g. trespass), the methods of enforcing these (e.g. injunctions) and the limits it provides on the enjoyment and use of this type of property (e.g. nuisance.).

However, the protections, enforcement methods and limits of intellectual property need to be rethought for the digital area.  The relevant issues for discussion are remarkably complex and far reaching.  The worst thing we could do is to let outdated and illogical metaphors prevent the adoption of a reasonable framework for cultural and economic use of copyright works.

4    4. Let’s Talk

There are many difficulties in copyright law; determining what infringes copyright law, evidencing infringement in an efficient manner, and finding the fundamental balance between the rights of copyright owners to benefit economically, and the rights of the public to use, create and consume these works, which form part of a society’s cultural fabric.

Approaching this task from the CD driven status quo is pointless.  The entertainment corporations need to provide geographically neutral, instant, user friendly and high quality access to media, which capitalises on the most up to date technological capabilities.  The consumer’s ability to use illegal access points means that for them to be convinced to stop, we require a new, fairer bargain.  Points of negotiation include:

• ·       How Long Should the Right to Exclusive Copyright Last? 

–   How long does an artist require a monolpy? What length provide an reasonable economic reward?  These considerations need to be balanced against the right of the public to use works freely in the public domain.  To access, engage and recreate with cultural works.  

•  Remix Creativity 

 – What rights should amateur pardoy makers remixers or mash-up enthusiasts have in their creations? Is it Is it legitimate that these are presumed illegal.   Should parody works such as these be prima facie illegal?

• ·       Why Is This Content Not Available in Your Region” 

-Is it legitimate to allow fictional legal contractual boundaries which have no technological barrier stop me from legally viewing my favourite show.  Why does the consumer have a moral duty to wait, and not watch pirated versions, but the producer has no duty to provide reasonable access?

• ·      Enforcement

– Should there be a presumption of guilt for copyright infringement, effectively a civil rather than criminal offence.  What due process, rights of appeal and other aspects are required to create  a system of enforcement which efficiently and fairly deals with copyright infringement, a civil cause of action which is inherently complex and traditionally requires a substantial amounts of effort to prove.

• ·       The Merits of Parallel importing

-For example see this 

The solution is not only about finding an efficient and fair way to enforce existing copyright laws, but to update these laws to reflect a modern and equitable balance between the rights of artists to be rewarded for their work, and the right of the public to access, use and re-create.  To strike this balance we need constructive agreement.  We need to stop pretending that our arguments are so powerful that they negate discussion, comprise and innovation.  Copyright law not only needs to be effective, but it needs to be respected.

For the copyright cynics to move forward it is important that they have their say on the areas of copyright law which concerns them, and the points of negotiation they think is important.  A piecemeal approach will only result in a piecemeal solution.  For real progress to be made the entire Copyright Act 1994 and it's practical affects needs to be considered.

I'm not the only one who thinks so recently in the NZ Herald leading IT legal thinker and Judge David Harvey:

" said copyright concerned everybody and urged people to become interested.

We have to be interested in this, because if we aren't then we'll be told what will happen by the big, vested interests. I would urge you to put your views forward in the 2013 review of the Copyright Act, because if you don't then you will have to suffer what the conglomerates and corporates give you,"NZ Herald - Judge tells Kiwis to speak up on copyright

The digital piracy debate is a complicated mix of public law, commercial law, economics, culture and morality.  For any modern consumer who watches, listens or creates online, the legal framework of copyright effects them everyday, and every click.   Some of the most important arguments, opinions and thoughts should come from the everyday consumer, NOT the flat cats and NOT the anti-record label kids.  The digital consumer's voice, expectations and essentially rights to watch and create need to be heard, because   until we ask the right questions, we won’t find the right answer, in terms of an appropriate legal frameworks.  That, I think is a powerful argument, and here is a good starting point:

Fair Deal

Alaister Moughan,August 2012

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[1] I was almost seduced into using the witty title of “copywrongs” for my dissertation on this topic, before it struck me that this title had been used before.

[2] "Yet for copyrighted works posted online -- increasingly the only medium that matters -- the theoretical term of copyright is a cruel joke.  Due to rampant piracy, there is no term of copyright online."

[3] "Odder still, the proponents of "balanced" copyright seem to oppose any form of copyright enforcement to protect online works."