A week or so ago I pointed out to reader BSK that his practice of copying CDs to his hard drive and then trading thephysical disks on swaptree was both illegal and unethical. He didn’t accept my argument, so I contacted the Copyright Alliance to get a professional opinion.
The response I received was unequivocal: This practice violates federal copyright law. Excerpts of the reply, interspersed with my comments:
The RIAA explicitly states on their website that this is illegal. (Scroll down to the bottom under “copying CDs”).
The most relevant part on that RIAA link, about copying CDs you own for your personal use: It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
You may, of course, trade a CD or book or DVD that you own (the “First Sale Doctrine”) as long as you do not make or keep a copy.
But, would someone agree that it is okay to buy a
book, scan it into your computer, and then sell the hard copy? Probably
not (I hope not). So, why is music different? It’s not – the law is the
same for all creative forms. Consumers have asked to be able to buy a CD
or a song from itunes and listen to it in their car, on their computer,
or ipod. So, with music it is generally accepted (though not technically
legal) that one can use music on multiple devices for personal use.
As long as you’re keeping all the copies, you seem to be in the clear.
It is also not legal to download a digital copy of a work and then print
it out or put it on CD and sell that. So, why would the opposite be
true?
Well, it wouldn’t, and I think this is just common sense.
I’ve run into a similar issue with people copying articles found online and pasting them into emails. Again, this is illegal, and no, it is not “fair use” – it is patently UNfair use. (It fails fair use on two grounds – the sender reproduced the entire work, and by reproducing and sending the entire work the sender impacted the market for the work because the recipient no longer has to click on the original site or pay for access to the article.) Pasting a link to the original article is legal. Pasting the entire article is copyright infringement, and while your potatoes are probably too small for the copyright owner to sue you, that doesn’t make it any less illegal. One longtime friend sent me an email like this, and copied so much text that he included the copyright notice at the bottom of the article … but sent it anyway. And he was offended when I objected to the practice.
In addition to being illegal, it’s completely unethical. If you make a copy of a CD, then sell or barter the CD (or even give it away), then two people have use of the copyrighted material while the copyright owner has only been compensated once. Isn’t it obvious that this is wrong?
Final point: BSK argued that this was about “freedom.” We do, in fact, have exceptional freedom in our ability to create, distribute, and purchase copyrighted works in this country today. If you want access to formerly banned books like Huckleberry Finn or The Grapes of Wrath, to hardcore pornography, to Pungent Stench’s Been Caught Buttering (if you’ve seen the album cover, you know what I’m talking about), you’ve got it. That freedom does not mean the freedom to make unlimited copies of these works and sell them or barter them or give them to your friends. We have laws designed to protect the rights of those who create intellectual property so they’ll be financially able to continue to do so. If you don’t like the laws – and I wouldn’t argue that they’re perfect, particularly the ever-increasing time of protection for copyrighted works – try to change them. But don’t steal from the authors and musicians whose works you enjoy.
I agree with PhillR (and said so above) that the duration of copyright is now excessive. That said, if you don’t agree with the law, fight to change it. The reason Congress keeps extending the duration is because there’s no one on the other side fighting for consumers of copyrighted materials. (And I’m not even sure how big of a deal the duration issue is – classic movies in the public domain sell on DVD for $10-20, not that different from protected films.)
And no, I don’t see a distinction between theft of physical property and theft of intellectual property. That reeks of rationalization.
Vlad – the NYT article also pointed out that album sales remain overwhelmingly in the physical realm, and digital revenues are still lagging. Now, the industry may just have to accept lower revenues per album, period, as a new business model, but industry revenues on the whole are not strong.
There is no question that my editors notice when a story I write leads to lots of clicks, comments, and new subscriptions.
Keith – If I was the first person to build a log cabin, clearly I’d be within my rights to declare no one could actually live in the cabin. I brought together all the necessary physical elements and through my labor created a physically tangible product. Were someone else to use it, it would deprive me of my property rights to use it.
If, however, someone figured out how I made the log cabin, and then through his own efforts collected the physical elements and through his labor created a new log cabin, I am not within my rights to claim this as a violation of my property rights; he is not in any way depriving me of use of my propery.
Now, if a 3rd party, through the use of coercive force, grants me a patent on the know-how to construct a log cabin, I now have an unnatural right to refuse others the right to build a log cabin, even if they came to this knowledge independant of anything I have done. Although they are not depriving me of the use and enjoyment of my property, I now have the ability to forcibly preclude them for using my “intellectual property”
I do not believe the difference between naturally occurring property rights (obtained through labor or contract) and “intellectual property rights” (obtained through an illegitimately State created monopoly) is rationalization as you put it.
In one case, I’m being deprived of the use of my property … in the other case, I can still freely use, destroy, or sell my property.
Kieth–I’m surprised and disappointed by your hard line. I’m sure you’re fully aware (and having not read all the comments, I’m assuming it’s been said above) that eyeballs can be as valuable as subscriptions, especially when they’re eyeballs that would have otherwise never peered beyond the paywall or sought out the content.
Just because we’re used to the idea of “writer” or “musician” as full-time, financially sustaining profession, that doesn’t mean it should be this way. Personally, I look forward to the day when that’s no longer the case.
Vinnie, can eyeballs be as valuable as subscriptions? How many eyeballs are required to replace the revenue from one subscriber, especially in a weak web-advertising market? I feel like we’re back in 1999, when sites would give all sorts of stuff away just to accumulate traffic, with no idea how to monetize all those eyeballs.
Glen, what’s a non-coercive force?
Seriously, patent rights exist to encourage innovation and investment in innovation. In your example, you’re completely ignoring the way that others would free-ride on your work and ingenuity if you had no protection on your patent.
Keith – I’ve seen studies that purport to contradict the commonly held belief that patents, copyright, etc. are necessary to encourage innovation http://blog.mises.org/archives/010217.asp
whether these studies are accurate enough is something i’m unqualified to determine, but they ring true to me
with regards to non-coercive force, i was referring to the “natural right” (in the lockean sense) to enforce a natural property right (something obtained by mixing your labor with it or via contract) … a patent right is not a natural property for the reasons I explained above
BSK,
“In my previous understanding, I felt it was both legal and ethical to do what I was doing…”
What in this discussion has changed/affected your ethical understanding of the issue? Are you using your interpretaion of the law (the basis of this string of comments) as your ethical basis?
I’ve read a lot of your comments on this blog, and generally agree with them, but if I’ve come to the correct conclusion, i.e. that you are equating following the law with ethical behavoir…whoa. (Or maybe the discussion has affected your legal understanding, but not your ethical understanding? Maybe?)
Vinne, irrespective of the subscription issue, there are no eyeballs to count when somebody excerpts the entire column, rather than provide a link. I presume Keith is happy to allow short excerpts that include a link to the entire column, since that sends eyeballs to him.
As for the others supporting file sharing, the argument that file sharing is not stealing and not immoral is pure sophistry. When you buy a CD, you are buying the information burned on to it, the CD is simply the means of carrying the information. There is simply no difference between slipping a CD into your jacket at Wal-Mart and illegally downloading the album, and both are unethical.
Keith – Following up on Glenn L’s comments, intellectual property has been a fairly hot topic lately amongst the Libertarian crowd. There are several good articles posted recently on the website he pointed you towards that examine this subject from historical, theoretical, and empirical standpoints.
A simple search on Mises.org of “Intellectual Property” will generate several links to some good material of varying length and depth depending on the amount of time one wishes to spend on the subject. The details of the various arguements are beyond the scope of me posting a comment here, but there are some pretty serious challenges to the generally accepted view on the purported need and benefits of IP law to support innovation.
Chris-
I do not equate “legal” and “ethical”. No, no, no. Rather, as I have come to better understand both the letter of the law in this situation and the spirit/intent of the law in this situation, I realize I must re-evaluate my stance. I am not entirely sure that what I was doing is illegal or that I would consider it unethical, but I also can’t say I know for sure it is legal and ethical. As a result, I want to learn more about this topic and come to a better understanding.
I certainly think that one’s ethical stance can be challenged and changed. If you previously thought that copyright law existed ONLY to protect profits of greedy media barons, you might conclude that it copyrights are wholly unethical. If you learned that copyrights guarantee that artists maintain a certain control over the use and distribution of their intellectual property, and ensure that the time/effort/money spent developing them are compensated fairly, you might change this stance and determine that violating copyrights was unethical. If you then learned then copyrights limit the opportunity for new and upcoming artists to sample established works for excessively long periods of time, thereby limiting the art they have access to, you might change your stance again. An ethical understanding of a situation is predicated upon an intellectual understanding of it. The more you learn, the better position you are in to make a determination, given that you are acquiring accurate knowledge.
Keith, FWIW, differentiating between the theft of physical property and the piracy of intellectual property was not an attempt to rationalize, though many people do make this argument. Rather, it was intended to point out that we are talking about a different set of laws and circumstances, and that the situations are not inherently analogous, at least legally. The argument could be made that ethically they are one and the same, though.
Paul H.-
“There is simply no difference between slipping a CD into your jacket at Wal-Mart and illegally downloading the album, and both are unethical.”
Are you kidding me? The difference is a petty theft charge and a $100 fine on your record vs. a multimillion dollar settlement.
Interesting discussion above.
I wonder if/when large media companies figure out how to profit off of free (see google, you tube, facebook etc), if this will still be an issue? media is changing and much of it is free now, it is going to be difficult to make people pay for something that is currently free. Music, movies, etc are readily available for free. Some of it legal (hulu, you tube, pandora) and some of it not yet legal (pirate bay), but the model to profitability has yet to be discovered.
This is a HUGE issue in the media community and some companies are going to try to charge (Rupert Murdoch’s empire, NYT (NOOOOOOO!) and others) but that likely won’t go over well. Why would one pay for the NYT or Fox news when yahoo has the same story for free? This is absolutely transferable to movies, songs or anything. Why would one pay for a song when it is free?
Brian G., while there may be a legal difference, there is no ethical difference. Sorry if I wasn’t more clear. By the way, I can’t say that I think the record companies business model of profits via lawsuit (after their cronies in Congress rig the rules in their favor) is particularly ethical either.
“And no, I don’t see a distinction between theft of physical property and theft of intellectual property. That reeks of rationalization.”
Not to beat a dead horse, but there are obvious distinctions. First, clearly the victim in physical property is actually loosing something real. With digital copyrights, that is just not the case.
More importantly though, copyrights aren’t actually property. They are an exclusive license granted by government for a limited time. Inherent to this is the idea that ideas can’t truly be owned, and belong to the commons. This is very different then real property, the confusion is result of a successful propaganda campaign by the media companies.
Consider-
http://www.techdirt.com/articles/20070521/015928.shtml
Actually I have one more comment on this.
Keith- You are often a proponent of free market and seem to be fiercely anti-government intervention. When it comes to free-agency, you often exclaim the value of letting the market play out outside of artificial constraints. After reading your blog/work over the past couple of years, I feel safe summarizing you as being a “strong proponent of the free market”.
So I am wondering why there isn’t greater consideration for the possibility that Copyrights are essentially a MASSIVE restriction on the free market; an attempt to generate scarcity where there is none. I am wondering why at the very least you don’t consider them to be a necessary evil.
Absent government restriction, there would be no limit to the amount of copies that could be made. No limit to derivative works. They are market controls, and there enforcement is a government subsidy, and I would like to see fiscal conservatives try and defend it on that level. Or does the long arm of Mickey Mouse even reach your blog?
Paul H-
Fair enough and I mostly agree with your ‘unethical x unethical ? OK to do’ proof. For years I wrote for a music mag and on occasion I’d get CDs from labels that were super glued into a Discman so there was no way that I’d be able to rip them onto my computer and then leak them onto the internet, which always sort of blew me away.
If the RIAA put as much effort into finding a legit solution to their mp3 problem as they do fanatically trying to protect their empire of dirt I’m sure we’d have an amicable solution all the way around by now.
Sorry Paul H, that ? in the first sentence above was supposed to be one of those “does not equal” signs. Is there any way we can get some of these stupid Function keys taken out of the keyboard and get some other symbols put in instead?
PhilR-
In my very rudimentary understanding of this, I don’t now that being in favor of copyright law necessarily conflicts with being pro-free-market. How is a copyright different than a patent? One protects intellectual property, one protects physical property. Both are necessary to ensure that developing new ideas/products is incentivized. Copyrights ensure that a market does exist. Otherwise, as soon as an artist released a work, there would be no opportunity to sell it or make money for it. I think you could make the argument that our current copyright law, as it is written, interpreted, and enforced, limit the free market. But I don’t know that copyrights, as a theoretical abstract, are inherently anti-free-market.
BSK – I will bet a tremendous sum of money that PhillR feels the same way about patents as he does about copyrights
Again, I’m not econ wiz, but I feel like I hear two very competing views in favor of the “free market”: one advocates for consumers and one advocates for producers. These two groups have different aims and different perceptions of what the “free market” is. It sounds as if PhillR is more along the lines of “consumer” in his view. I think the ideal “free market” balances the needs of the consumer and the producer. Ironically, I doubt either side would view this compromise as a “free market”. And I, personally, am okay with that.
I oppose any system that makes it impossible for inventors or content creators to receive a fair payment for their creations. If you write a novel, and someone makes a movie version of it, shouldn’t you receive some of the profits, as the filmmakers are otherwise free-riding off your work? If you build a better mousetrap, should others be able to manufacture and sell it without paying you? Defending the rights of inventors and content creators doesn’t make one anti-free-market.