Rodney Orpheus ([info]rodneyorpheus) wrote,
@ 2009-07-05 09:10:00
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Current mood: sympathetic
Entry tags:media, music, politics, society, technology

Copying is not stealing, mmmkay?
I just left this on my friend Richard's blog when he discussed the "copying CDs is stealing" issue. I've been struggling with this for many years (one reason why I haven't made a CD in a while, I'm morally unsure of what it means anymore), but I'm slowly getting to a place where I think I am starting to understand this fully...

"Illegal downloading" is not the same as "stealing" either legally, practically, or morally. If you have a car, and I steal it, then I have a car and you do not. That's the definition of stealing: to take your property and thus deprive you of using it. It is predicated on the law of "scarcity of resource" - that stealing your food means you go hungry, since there's not enough food for both of us. or stealing your money means you can't afford to buy new food.

Digital information, since it is infinitely replicable for negligible cost, therefore CANNOT be stolen BY DEFINITION. Anyone who states that copying their music (or whatever) is stealing money out of their pocket either does not understand this fully, or is deliberately obscuring the real facts in order to profit.

In order to obfuscate this fast, large media corporations have been fighting on several fronts over the past years, such as:

  • creating propaganda to persuade people that replicating an infinite resource is morally wrong (using morally loaded terms such as "stealing" and "piracy" (neither of which it is)
  • paying politicians enormous sums of money to enact laws to make the free use and trade of digital information illegal (ironically often the same people who shout loudest about the virtues of the free market economy)
All of which is the digital version of King Canute attempting to command back the waves.

Therefore the challenge for any artist in the digital age is not how to constrain the infinite replication of their work, but how to profit from it, which is a very different thing. Take Magnatune: you can download stuff for free from there or you can choose to pay IF YOU WANT. Seems to work for them and their artists.

Take Radiohead: they offer their album for WHATEVER PEOPLE WANT TO PAY. So Radiohead are stupid, right? No-one is going to pay for something they are being offered for free... right? Hey guess what: the average payment was something over 2 bucks last I looked.

OK says the traditionalist, that a lot less than the $10 cost of a CD or MP3 from iTunes... but hey, guess what? The ARTIST doesn't GET that 10 bucks YOU pay. The record company does. The ARTIST gets a tiny share of that, maybe about... ummm... wow... TWO BUCKS. So how much money does Radiohead lose by offering their album for whatever you want to pay? Answer: zero. They can give it away and MAKE EXACTLY THE SAME AMOUNT OF MONEY AS BY SELLING IT FOR TEN DOLLARS.

Welcome to the digital economy my friend: where there's a lot of money to be made by giving things away for free. See GNU/Linux for a shining example.

But wait! There's more... Radiohead haven't just made the same amount of money. They have also given the record away to LOTS of people who would not, or could not, otherwise have paid for it. So NOW they have a fanbase who are massively more numerous than before. That's called GREAT MARKETING, and how much did it cost them? That's right: nothing. So not only have they made the same money as before, they've actually added value to their product!

As Cory Doctorow once said: my problem as an artist isn't piracy, it's OBSCURITY. No-one is going to pay for my work if they don't know who I am. Therefore it's OBVIOUSLY better to GIVE THE STUFF AWAY TO PEOPLE WHO WANT IT, rather than NOT sell it to people who don't know who the fuck I am in the first place.

And of course the WORST POSSIBLE THING I could do is hassle the people who WANT to hear my music: they are my FANS, my success DEPENDS on them liking me. So only an idiot would say that their fans are WRONG FOR WANTING TO HEAR THEIR MUSIC, right? I mean, really, what could be DUMBER than my criticising people for actually WANTING my work. But hey, guess again: THAT'S WHAT RECORDING COMPANIES DO.

Any artist who has a problem with people wanting to hear their music is a fucking idiot frankly.

I could rant about this for another couple of hours, but I have initiations to do... And yeah, I know I haven't written here in a while, Facebook kinda took over for a while there, but I have not fled LJ completely yet... :-)

(15 comments) - (Post a new comment)


[info]lee_chaos
2009-07-05 11:31 am UTC (link)
That's about the best piece on downloading I've read - and I've read a LOT. Excellent stuff!

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[info]cygninae
2009-07-05 11:44 am UTC (link)
That actually makes a HELL of a lot of sense.

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[info]christeos_pir
2009-07-05 02:51 pm UTC (link)
But the parallel, if I understand it, is to print media.

If I photocopy (not "Xerox") Abrahadabra and start selling copies, and not a penny comes to you, your publisher, etc., isn't that stealing?

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[info]rodneyorpheus
2009-07-05 05:54 pm UTC (link)
No, it's not. It's copyright infringement (for making the copy) and bootlegging (for selling it), neither of which is the same as stealing, in fact or in law. And the two things you have done that are illegal (the copying and the bootlegging) are also two completely distinct and different things.

I DO give away Abrahadabra for free: there are authorised German, Spanish and Croatian translations on the Web now that I'm happy to see copied and spread around. I'd also happily make the English version available for free download but my English language publisher won't allow it.

With my new book (which is really honestly NEARLY finished right now) I'd LIKE to make it available for free download, but also get it published in a mass-market paperback - unfortunately that's EXTREMELY difficult because few publishers will allow it. Am currently negotiating to see if I can get a way around it.

As regards you SELLING an illegally printed version, that's a different medium, and a different story...

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[info]christeos_pir
2009-07-05 06:08 pm UTC (link)
> As regards you SELLING an illegally printed version, that's a different medium, and a different story...

That is what I was asking... but I gather the distinction you're drawing is when copies are shared for free and not charged-for. I take it you don't subscribe to the idea that the lost sales outweigh the gain in publicity and goodwill? (The idea that the benefits outweigh the potential losses is much more popular in places like Japan, for example, where fanfic/fanart and fansubs are not only tolerated, they're often downright encouraged.)

Edited at 2009-07-05 06:45 pm UTC

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[info]venome_relc
2009-07-05 08:08 pm UTC (link)
In all this "legal-illegal" thing the weak point is - none of those people who say that it is a crime can ever define where this "crime" starts.
1. I buy a CD - here everything is clear/
2. I rip a CD in order to listen it as MP3 and be able to use it on my DJ station. Is it OK? Or should I have bought MP3s legally as well?
3. I copy CD for playing it in clubs, just for my convenience. Is it a crime? Or should I play original only and buy a new CD every time I have a scratch on the original one and don't want to risk damaging the player?

And so on, and so forth. I really hate whhen people stand up to some idea that is not just doubtful, it is absolutely unclear and undefined.

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[info]rodneyorpheus
2009-07-06 06:51 am UTC (link)
You actually hit upon an extremely important point here, which I think I'll have to elaborate on in another article. In short:

If I buy a DVD I am told that I cannot copy it because I am buying that specific item in that specific form i.e. I have bought THE DISC.

However if I want to take that DVD to college and play it in class to illustrate a point I am told that I cannot, since that is "public performance" and prohibited by the LICENSE that I bought, which was a licence to WATCH THE MOVIE for private purposes only.

So on one hand I'm told that I bought THE DISC, and on the other I'm told that I bought the LICENSE TO WATCH what's on it. Those are entirely different things. Because if I bought the license to watch it, then I SHOULD be allowed to copy it and watch it on any medium I wish, right? (Which oddly enough is exactly what the law says in France, where media shifting is legal). On the other hand, if I bought the DISC, then I should be allowed to do anything I want with it, since it's MY PROPERTY - otherwise what did I pay 10 bucks for?

But there's more: if I buy a book, I can lend it to you and let you read it. But if I buy a DVD, I'd be breaking the law if I do that, since I only bought a license stating that *I* and my family can watch it in my home.

But hang on a moment: I paid for this thing, and now I'm being told that by doing so I am bound by the license. But I never ACCEPTED this license, so thus it's a one-sided contract by law. It's assumed that by paying I am entering into a contract with the copyright holder, but I never see what that contract is, or sign its provisions - and that contract can be changed AFTER THE FACT and I'm going to be bound by new provisions that could NOT know about when I bought it. How can that be fair?

To answer your specific questions AFAIK:

2. Legal in France, illegal in USA, possibly legal in Ireland & UK
3. See 2, in most cases that means buying a new disc if the old one has a scratch, yes. Also note that if you buy the song via iTunes instead of buying the CD you are committing a crime by playing it at a club, since the iTunes license does not allow public performance of songs bought in that medium. Yeah, nuts isn't it?

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[info]venome_relc
2009-07-06 12:26 pm UTC (link)
More than that, If you buy DVD and invite me and another 50 of your friends to watch it with you - you are technically committing a crime :) Curiouser and curiouser.
Oh, and there are players that don't play DVD directly but in fact rip it and serve the media from its own memory - is it illegal too and should all those players be put in a pit and beaten with stones?

But going back to the CDs. When I buy a CD, I don't sign any license, therefore I'm not bound with any responsibilities. Therefore, I buy only the CD, the media on it, the case and the booklet. tis' all. media is the key word, if I have right to rip it and to use it - it means that I have full right to have the digital copy of particular songs. Therefore, obliging me to buy a new CD when the old one has a scratch - is selling me the thing I have already paid for (needless to say, I don't need another piece of plastic and shiny-glossy paper in my house).

Another point is iTunes. I can be proud saying that Apple hasn't seen any of my money. But do you know that some DJ software automatically imports tracks from iTunes? Not that it is pushing somebody to commiting evil crimes or something...

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[info]mythlore
2009-07-06 05:37 am UTC (link)
You're confusing pragmatism with ethics. Great subject and I agree with everything but the first bit. If I pay for a movie, then let all my friends in the exit door, am I stealing? Clearly doing something someone doesn't want you to do with something they created or operate is a form of stealing, even if there's no tangible transfer of goods. If you go with the free model and profit from concerts, you certainly wouldn't want everyone sneaking in.

Now is it practical to ignore the realities of the internet? Hell no! You're right on the money there. Exposure is 99% of the battle and the free models are working.

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[info]rodneyorpheus
2009-07-06 06:30 am UTC (link)
It is most definitely NOT "clearly... a form of stealing" - and some would say that lack of clarity has been deliberately fostered by those with a vested interest.

To reiterate: the crime of theft has as much to do with the crime of copyright infringement as it has to to with the crime of bigamy. That's what the law (correctly) says, and that's the first thing that people have to understand when discussing these issues. If you do not clearly differentiate these things from the start then you are invariably going to end up with a completely nonsensical discussion that bears no relationship to either law or reality.

The "crime" of letting people watch a movie for free is an interesting example actually: if you let people into the movie theater for free, AFAIK it is NOT a copyright infringement crime since showing a movie in the theater is defined as a public performance. The crime you'd actually be committing would be something like trespassing i.e. the crime is in them entering the building without authorization, not in what they watch after they come in. Otherwise you'd end up with the "crime" of letting people come round your house to watch a DVD.

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[info]mythlore
2009-07-06 07:15 am UTC (link)
http://en.wikipedia.org/wiki/Theft_of_services

Theft of services is legally recognized and would apply to the theater situation as you bypassed the pay gate. I realize it's a gray area, but in theory, any claim of ownership or a disruption of any business model could be followed by a claim of theft.

I can think of many of software company that went under due to piracy. Clearly there's something to be said for controlling access to costly, high value, low volume virtual goods as the high volume free model wouldn't work.

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[info]marie_paris
2009-07-06 06:54 am UTC (link)
Giving people who would otherwise have difficulty accessing it free access to your music offers them a chance to consider investing in your merchandise and also enables the artist to have a farther-reaching medium with better marketability.

Why is this so hard for people to process--given that the corporate mechanism is a profit-monging souless mechanism....

Not rocket science.,..

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[info]rodneyorpheus
2009-07-06 06:56 am UTC (link)
Oh, corporations understand this extremely well - they just have a vested interest in making sure that YOU do not.

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[info]marie_paris
2009-07-06 08:21 am UTC (link)
mais oui!

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[info]venome
2009-07-09 01:29 pm UTC (link)
I have translated this into Russian, for some of my copyright-concerned friends :)

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