[wordup] Stealing vs. Copyright Infringment

[Adam Shand]

From:http://www.tenreasonswhy.com/weblog/archives/2003/08/03/stealing_vs_copyright_infringment.htm

Stealing vs. Copyright Infringment
August 03, 2003

Matt Haughey, posting on Metafilter, about the difference between 
stealing and copyright infringment:

   Stealing is walking into a Art Gallery and taking a painting
   under your arm and leaving.

   Copyright Infringement is going to a national gallery and taking
   a digital photograph of a painting, then going home and printing
   it for placement on your wall.

   One involves the theft of property, making it so there is 1 less
   painting in a gallery, the other does not. In either case, no money
   exchanges hands with the gallery, but in the second case there was
   potential for a sale of a painting.

   It's a thorny issue, and neither side is completely in the right,
   but there is a difference between "stealing" and "copyright
   infringement" that is worth noting, and perhaps, worth thinking about
   when drafting new laws to deal with it (please, please, please don't
   use old property laws for copyright infringement).

About as good an explanation fo the difference as I've read.

Part of the problem with the whole debate over file-sharing, MP3s, et al 
is that "intellectual property" is a term that misleads people into 
believe that the creative works must be treated the same as physical 
"property." In fact, they simply aren't. Don't believe me? Try this 
experiment:

Give someone your blender. Let them take it home with them. Now sit in 
your house, and try to make a smoothie in your blender.

Now, give someone your idea. Let them take it home with them. Now sit in 
your house, and try to make use of your idea.

You can't do the former because physical property is "rivalrous." It is 
a limited resource and can't be owned or consumed concurrently. If I 
steal the Mona Lisa, you can't go to the museum and see it. If you take 
my blender, I can no longer use it. Intellectual property is a 
"non-rivalrous" resource. My consumption of it doesn't impact yours. If 
I take a photo of the Mona Lisa, the original is still hanging on the 
wall of the museum. You can take my idea, but I haven't lost it by you 
taking it.

---- COMMENTS ----

... <SNIP> ...

Nowhere in the post do I or Matt Haughey argue for doing away with the 
concept of intellectual property or intellectual property rights. 
Intellectual property law (e.g. copyright, patents, trademarks, trade 
secrets, etc.) exist explicitly to address the situtation you describe.

The problem with the current batch of legislation is that corporate 
lobbies have managed to convince legislators and judiciary that 
intellectual property = physical property, that copyright infrigement is 
"stealing." Worse, the same lobbies are now advertising to the general 
public to try spread that bit of misinformation.

In general, the existence of intellectual property law is a good thing, 
as it provides incentive to create ideas, creative works, etc. However, 
intellectual property law is supposed to create a "limited monopoly" 
over the intellectual property. Why limited? To assure the public 
benefits from a robust public domain.

That's why it's important to poke holes in the "copyright infringment = 
stealing" fear, uncertainty, and doubt wherever and whenever possible. 
It's impossible to protect the public domain when you treat intellectual 
property as the equivalent of physical property.
Posted by: Greg at August 4, 2003 07:13 AM

After reading the debates at MeFi, I feel inclined to give some feedback 
from my take on the current problems facing the rights of intellectual 
property. Since it's practically impossible to get a membership at MeFi, 
I hope that a few people will hazard a glance this direction.

First, a bit of background and a disclaimer. I've consulted with several 
companies on copyright law, Curious Labs/Egisys to name one. While I'm 
not an attorney I've spent thousands of hours researching this one 
aspect of the law, and so I consider myself on good footing... at least 
good enough to have written several nationally published columns on the 
subject.

As for the disclaimer, this is bound to be a long post, but I hope it 
will add some insight into the discussions, and possibly provide a 
context from which others may work in future debates. My personal views 
on the subject are bound to creep into this post, but I hope they won't 
interfere with an objective assessment of the information I provide. If 
I have time, I'll revisit this forum at a later time and provide links 
to my information, but I can't make any promises as I have a busy day 
scheduled. (I'm currently enjoying my morning coffee)

When a person looks at the crafting of current copyright law, its 
limitations, its excesses, and its public perception, many things must 
be taken into consideration... namely: process, application, inference, 
revision, and precedent (though not necessarily in that order).

The original intent of allowing for copyright was "...to provoke the 
advancement of the useful Arts and Sciences..."

Basically, the folks who ran the country in the early 1800's wanted a 
writer to be able to make a living wage off of writing. Before 1900 the 
laws were expanded to include the publication of sheet music, and 
everything worked well for the most part. Shortly after the 20th century 
began, however people figured out how to record, replay, and broadcast 
music, and the guy who wrote the original music got left out in the 
cold. Thus the laws got another kick forward and content owners got some 
added rights and protections.

The process of revision had been established by the 1950's, and it went 
like this:

When the law needs revised, content owners, and lobbyists (The National 
Library Association is a big one) approach congress to present the 
reasons for revision. Congress holds committee and calls in the lawyers 
to work out a fair deal. That gets sent back to the content owners who 
respond... this goes back and forth until a compromise is made that both 
congress and the interested parties find reasonable.

The process worked because; a. Congress understood that it was their 
duty to act in the best interests of the public, and; b. the judiciary 
branch could be trusted to strike any law that infringed on the 
constitutional rights of the populace in general.

So, what went wrong?

By 1978, copyright law had become a quagmire of legislation to such an 
extent that no elected official, well meaning or not, could begin to 
decipher it. It was a series of special case exceptions (libraries 
always put in their two cents), outdated references (if you have a 
music-wheel phonograph at home you need to secure special permissions 
from the publisher of any sheet music you wish to use when preparing 
your player piano for public listening), and some things that just 
didn't make sense at all (allowances for budgeting of damn maintenance 
in Willem County, North Dakota).

To make a long story short, every time they tried to revise the system 
it just got more arcane. By the early nineties, the public was 
misinformed, the legislative branch had long ignored a series of laws 
that had grown to over 45,000 pages of legislation, the judiciary didn't 
have much reliable precedent, and, to turn a phrase, the whole thing was 
screwed harder than a cheerleader on prom night.

When the internet became a huge focus, fireworks started to fly. The 
federal government wanted to get companies actively involved in the new 
medium, which was critical to the US maintaining a technological lead. 
The corporations turned around and stated that in order to expand into 
cyberspace, they need assurance that their works would be protected.

Personal note: In fact, the companies were full of it. At the time, the 
net was growing so fast that anyone that wasn't on board was losing 
millions, and content was amassing in terabytes despite a complete lack 
of protection. The government's "experts" were uninformed and short-sighted.

Suddenly, the people who were supposed to be arbitrating for the public 
were outsourcing the job to consultants who were more concerned with 
getting Disney and Fox into cyberspace than in protecting the rights of 
the consumer.

One look at the Green Paper or the White Paper (precursors of the DMCA) 
make it apparent that content owners were about to acquire unparalelled 
rights and powers.

While all this was going on, a landmark court case happened. Someone had 
happened onto some internal records from the Church of Scientology and 
posted them on his AOL member's page. The documents proclaimed the 
Church's belief that they were long-dead resurrected space aliens who 
had fled from a galactic overlord. Why they would object to the 
publication of these records, the world may never know, but, they did, 
and they sued.

They sued AOL.

They sued, and they won... a lot.

In fact, the courts determined that one count of infringement had 
occurred for every time the digital document had been copied. Tough to 
prove, eh? Not really. Just assume it's in the bilions... that's right, 
billions. This is because every time the file had been moved from 
physical storage to RAM, into and out of RAM, displayed on screen, 
deconstructed for tranmsit, recompiled, retransmitted, boosted in 
transit... in short, one act of infringement for every time that file 
had been copied to any part of a computer or communications line...

The Church of Scientology got its secret documents pulled, ruined the 
original infringer, and set the tone for a very nasty piece of new 
legislation, all in one big judicial blitzkrieg.

That is the foundation for the DMCA. The DMCA redefines intellectual 
property, gets rid of Fair Use (Which hasn't existed on the net since 
2000), allows content owners to protect digital piracy through any means 
necessary (not even short of crashing your PC/destroying other legally 
obtained data)...

The biggest defenders of the DMCA are the RIAA... These people sued 
Fafhenhoffer Labs (creator of .mp3 format) and Intel (The makers of the 
first .mp3 player) on the grounds that those innovations' primary use 
was for the piracy of protected content.

The RIAA spent hundreds of millions of dollars in court fighting 
progress, and won more often than not. (Anyone been to Napster lately?)

Most analysts agree that had the RIAA invested their legal costs into 
developing a protected format that they could charge for, they wouldn't 
face their current predicament.

The analysts for the MPAA certainly believed that, which is one reason 
why we have DVD Players sitting in our living rooms instead of DivX boxes.

When the RIAA recently announced their intention to crack down on 
file-sharing (They do it every year... probably just to spook the 
newbies who tend to be easily frightened), the MPAA announced that they 
will not be expending capital to assist them (the RIAA) because it's a 
waste of time and resources.

One might argue that in five years the growth in consumer bandwidth will 
force the MPAA to show more concern, but I personally doubt it. In five 
years, the MPAA will have been spending hundreds of millions developing 
secure formats, pay-per-view streaming video sites, etc.

Side Note: This move on the MPAA's part is half analysis and half real 
world experience... they spent millions trying to fight the 
manufacturing of DVD burners and lost. It was extremely similar to the 
fight against the CD burner and the portable mp3 player, and the MPAA 
couldn't possibly overlook the parallels to the RIAA's current predicament.

The big losers will be, in fact, Blockbuster and Hollywood Video, who 
will be unable to compete with companies that let you rent movies at 
home, or buy them for a fraction of the current DVD selling price by 
providing your own burnable media.

Another thing to consider about the current situation is that policy in 
the US changes slowly. Every administration has its own issues, but 
substantial changes occur over long periods of time, with the political 
pendulum swinging wildly from end to end until coming to rest nearer the 
center.

Currently, file-sharing isn't considered morally or ethically wrong by 
most people because the laws are so extremely tilted in favor of the 
content owners/providers that nearly everything seems actionable... but 
as the pendulum swings toward public opinion, special interests like 
Disney and the RIAA will be forced to give up rights in favor of profits.

The MPAA is taking a series of positive steps in preparing for the 
future. The RIAA is fighting progress tooth and nail.

Either way, the DMCA will be coming back for revisions soon, and only 
time will tell whether file-sharers are acting more or less feloniously 
tomorrow. ;)

Posted by: Paul Jenkins at August 4, 2003 09:52 AM