The latest engagement in the file sharing wars is a victory for the forces of, well, file sharing.
The makers of two leading file-sharing programs are not legally liable for the songs, movies and other copyright works swapped online by their users, a federal appeals court ruled Thursday in a stinging blow to the entertainment industry.
So far, so good. Those using file-sharing software to violate property rights are, after all, personally responsible for what they do. File sharing software has legitimate uses, and its makers should no more be held responsible for illegitimate uses than a camera manufacturer should be held responsible for child pornography.
Among other reasons, the 9th U.S. Circuit Court of Appeals said Grokster Ltd. and StreamCast Networks Inc., unlike the original Napster, were not liable because they don’t have central servers pointing users to copyright material.
One begins to suspect that the court is straining a tad to distinguish its earlier decision shutting down Napster, but let that pass. One is always surprised to find the reliably statist Ninth Circuit signing paeans to the market, but whatever gets them through the opinion, right?
“History has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player,” [Judge] Thomas wrote. “Thus, it is prudent for courts to exercise caution before restructuring liability theories.”
Finally, a quote from the Ninth Circuit that I hope to find cited in other cases. Full opinion here, and hat tip to Hit & Run.
What I’m trying to figure out is why this is such a crushing blow to the entertainment industry. Aside from the obvious monetary loss, they aren’t headed in the right direction. Why not embrace this desire to obtain materials online by buying the rights to the file-sharing technology and making users pay for copyrighted material, rather than attack what seems to be the preferred method for finding movies and music?
Because the entertainment monoliths are stasist, not dynamic, Alex.
The main threat that the filesharers pose is to the entertainment industries’ business model of:
“Create tat. Spend billions on advertising tat as quality goods.Take money from consumer before consumer finds out how lame it is. Keep money.”
If one downloads a poor copy of tat, one recognises the tatosity and fails to be duped into the cinema/record shop.
If one downloads a poor copy of a high quality item then one may well hasten to the approved vendors, wallet in hand.
Yes, one may download a perfect copy and not bother to buy a real item but then again one may never buy the real item. For instance I would never pay £5 to see ‘Catwoman’, but I may watch it (for whatever portion of my licence fee it costs) on telly in order to heckle and slag it off.
Claiming that a downloaded mp3 is a lost sale is as realistic as saying that every stolen Ford Fiesta is a lost sale to Ford (if that spotty 14 year old couldn’t steal the car he would have been forced to buy it).
People aren’t entitled to take what they want. That’s the underlying principal behind property rights. It’s not yours to take, it belongs to someone else. Music or movie files are to property of the creator or the person to whom they sell the property rights to.
That said, the question then does arise as to how much Force is proper by the State to protect rights, and how invasive the destruction of other markets is allowable just because some may be involved in criminal activity. Liberty and security are inverse to each other. With a complete loss of liberty, file sharing can be stamped out completely, but then the individual is laid bare before the State.
So at the end of the day, the entertainment industry has every right to dispose and market their property free from theft, but the individuals who make up the mass has a right not to shunted aside categorically in the attempt to preserve property rights. You can’t use a sawed-off shot gun to kill a fly.
Incidentally the cost of one song on a wax cylinder 100 years ago was roughly $10-$20 in today’s money. Today, due to technology and markets, you can get a digital copy, usually with very liberal fair use rights, for 99 cents plus the cost of the medium/media. And people still find a way to bitch and moan. And I think it’s the mark of a relatively spoiled society when so much time is spent on a ‘want’ versus a ‘need’. If we were talking water rights, then we might be on to something.
Actually, Real is offering digital copies for 49 cents now, but there are many reasons not to love them for it (long story, not relevant to post)…
While I agree that “People aren’t entitled to take what they want. That’s the underlying principal behind property rights. It’s not yours to take, it belongs to someone else. Music or movie files are to property of the creator or the person to whom they sell the property rights to.” , I feel that it should be made plain what those rights are when you are asked to exchange money for goods.
Buy this ‘Bros’ CD, it is the greatest music ever made! Only £20! But you can’t make a copy of it! But you can’t play it where other people can hear! But if it gets damaged, hard luck. But if it doesn’t play on your hardware, hard cheese. While these restrictions are applicable to you, we can do anything we like with the money you have exchanged for this ephemeral product.
Buy Now!
But you can’t make a copy of it!
Under fair use, you can make as many copies as your heart desires (at least here in the US). You just can’t give it to anyone else. I have my music on the CD’s they came with, on one of my computer hard drives, and as much of my music as I can fit on my Ipod. If I really wanted, I could burn some select discs to have in my car, but I prefer to listen to sports talk radio. One license, beaucoup copies.
But you can’t play it where other people can hear!
You can play music that other people can hear you just can’t do it when it serves a commercial purpose to you. Why would anyone choose to be hassled by your music anyway?
The music you buy is actually under a license. In a sense it is a perpetual renting of the product. You wouldn’t advocate that simply because someone rents a house they can sell it? They may have some rights to sub-let if they need to, but they cannot dispose of the property they are renting. You have a right to lend (at no charge) the CD to whomever you want, or sell the existing product (intact with the license) to whomever as well.
Think also of money which typically requires interest. It’s not your property, it is merely being loaned to you. If it is sizable enough, there will likely be restrictions on what you can do with the proceeds, and it is expected you will pay it back with interest. While cash is cash, most loans perfect some sort of security in general assets of the debtor, or directly secured by that which was purchased.
Interest, rents, and licensing are all abstract concepts of ownership versus use, someone owns it, someone else uses it, but with restrictions. Since I doubt most people who frequent this site would cotton to a mass movement for tenants to claim property from their landlords, nor demand that money be loaned ‘usury’ free, I wonder why so many don’t have a problem breaking a licensing contract. Arguments that it’s o.k. the landlord has lots of property, or the creditor has lots of money doesn’t hold a lot of water.
Neither does a unilateral decision to sample a product before purchase. The consumption of music is the listening. Once it has been ‘uploaded’ into the brain, the product has been consumed. A seller may want to stimulate sales by allowing someone to hear the song, but they are not obliged to. It’s not up to a tenant to decide just how much rent they will pay once they have moved in.
Anyway, every CD I’ve ever bought clearly displays the copyright restriction before I buy it, so I’d ultimately have no one but myself to blame that I can’t burn copies for other people with impunity.
Lastly, I still wouldn’t want the State to swoop in with SWAT teams in helicopters, or dropping block buster bombs, because someone burned a copy of Tiny Tim’s Greatest Hits for his mother. Again, there has to be a balance between protecting property and general liberty. The original article points this aspect out. I didn’t read it as a justification for swapping but the combatting drastic measures for trying to prevent it and eclipsing other fair use in the process.
File sharing is not a violation of property rights. No one can justly claim to have a monopoly on the physical reproduction of an idea or a movie or a piece of music.
File sharing is not a violation of property rights. No one can justly claim to have a monopoly on the physical reproduction of an idea or a movie or a piece of music.
When it’s an exact copy by the original artist? Are you a musician or writer? If not, maybe you’d have a different viewpoint.
You might have some standing if it’s a patent on a process or even a piece of machinery in that that IS an idea put into action as labor to produce. Copying an original work and not paying anyone for it is theft. As far as I know, if you like a song, there is nothing preventing you from making your own version and using it for yourself. If you want the EXACT version by the EXACT artist, I think that establishes singularities enough to be called property. Why not hum a version of your favorite songs into a computer microphone and make mp3’s from now on? If you need a reproduction of someone elses work and nothing else will suffice, you’ve established property that belongs to someone else. It’s certainly not yours.
Erm, slightly off topic, but does anyone know if the ‘losses’ that are made by the copyright owners are accepted as such by accountants and tax inspectors?
If so, I would like to point out that MY humming version of ‘Greensleeves’ is available only from me for £1,000 a copy and i hope to crikey goodness that it doesn’t get onto any filesharing networks before my next tax return.
When Britney Spears commits her own time to creating music, she properly owns her own labour and can choose where to direct it. She doesn’t own the physical data existing on a compact disc.
If a music artist desires renumeration, then why not state, “10% of the sales of this CD go to artist for the time they have invested to produce this work”. That’s in addition to any number of live paid performances.
The war on IP “theft” is just another variation on the drugs war.
When Britney Spears commits her own time to creating music, she properly owns her own labour and can choose where to direct it. She doesn’t own the physical data existing on a compact disc.
If she can document a chain of title, where that data resulted from her labor, why not?
If a music artist desires renumeration, then why not state, “10% of the sales of this CD go to artist for the time they have invested to produce this work”.
That’s roughly what intellectual property rights say, only with the caveat that you cannot have the CD unless you pay for it. The question is, what happens when someone declines to pay for the disk? Are you saying that whether or not to pay for data that you acquire should be purely voluntary, and that no one should have any property rights in data at all?
When Britney Spears commits her own time to creating music, she properly owns her own labour and can choose where to direct it. She doesn’t own the physical data existing on a compact disc.
The physical data on the disc doesn’t likely belong to BS, it likely belongs to a record company who licenses the rights to distribute the data. You, as a buyer, for cost X, acquire a license to use the data for your personal enjoyment. Fair use rulings have deemed that that license entitles you to copy the data as much as you want for your own use. The license does not entitle you to make copies of the data for anyone else.
I’ve haunted this thread well enough by now but I’m going to bust out the theory anyway.
The root of property exists because of labor. If a person finds a spot of unoccupied land, cuts down a few trees, splits them into rails, puts up a fence, extracts the boulders and rocks from the ground, furrows and enriches the earth, and puts up a cabin, one might be inclined to think that person has property rights. The person has applied physical and mental labor to resources and improved their value.
The increased value belongs to someone. It might be the individual themselves or a person who contracted money for the labor applied (here, of course, is the origin point for the major economic philosophies based around if that trade is fair viz allocation of collective efforts, but that’s a whole other story).
The reason this is brought up is the traits that lead up to the concept of property, in this case dealing with tangible resources. But most of the traits exist when discussing something such as music. A person labors mentally and physically to produce something of value that didn’t exist before, again with very singular qualities that are intrinsic to the value (the original recorded version versus your hummed version, which is useless). If these don’t stand on their own as enough to formulate the basis for property rights, then the logic can be rolled backward to say that you didn’t have any rights in the virgin land in the first place and any improvements made, while appreciated by all (especially he who would occupy it), don’t amount to much to you.
At the end, it is physical and mental labor which injects value into a market and it originates from an individual outward. They do not have to market it, but once they decide to, they are free to restrict its use (see all the other previous examples of restricted rights of usage/occupancy – rents, interest etc that have been called upon to abolished by the populistic extremes of the left and right). You can decide to buy a version, with restricted rights, or not. They can decide to sell without restriction or not. It is embedded in the contract, and as I said before, every CD I own has ‘All Rights Reserved’ on it somewhere, which ARE a part of the contract you voluntarily engaged in. Unilaterally deciding later to rewrite a contract or not honor parts of it usually leads to some problems.
Once a property right is established, the State then is called upon to help secure that right (in fact, most intangible property holders are much more agressive than even they might think of being, but the federal government requires ‘affirmative action’ on your part to protect your rights or they won’t help). That applies to our physical as well as our intangible property (or else why have a State? If you are essentially discussing anarchy, then by all means copy all the data you want and deal with the consequences from and agrieved party when they send some of their enforcers over).
Even under such a construct as we have, I’d certainly be willing to debate the various stylings of intangible property, patents, trademarks, or copyrights. Some may be too restrictive. And, as I have already said, I certainly would want some restraint by the State in perfecting people’s rights in their property. There has to be limits, and it may so happen that a market can be destroyed incrementally by theft if the measures necessary to protect it are too invasive or broad. The unfortunate reality of a free society is a certain amount of risk and insecurity is required to maintain general liberty for all.
Erm, slightly off topic, but does anyone know if the ‘losses’ that are made by the copyright owners are accepted as such by accountants and tax inspectors?
If so, I would like to point out that MY humming version of ‘Greensleeves’ is available only from me for £1,000 a copy and i hope to crikey goodness that it doesn’t get onto any filesharing networks before my next tax return.
Since you ask (tongue in cheek) I’ll answer. Speaking for software intangibles, the costs of research are expense. Once viability is reached, expenditures are capitalized, and once production begins of distribution, the costs are expensed as cost of sales. The costs would likely remain capitalized (or perhaps amortized over an estimated life, I don’t know different tax laws around the world), that is until the product becomes useless when everyone, merely transferring data, depletes the value. Then whatever is left, assuming amortization, or the capitalized value would be written off. Of course if they don’t get their costs back, from start to finish, they will most certainly not create anymore software.
I really don’t know why this is such a hard concept to grasp. I might be persuaded to not favor protecting a patent or a process. One might think that if we didn’t have trademark protection the world wouldn’t come to an end. But when someone decides they must have an EXACT reproduction of a completely unique item that they had no part in producing, and are graced with the ability to acquire said production for a very reasonable fee, make as many copies as they desire for their own use, for the remainder of their ‘audiological’ life and bequeath said copy to their heirs, and the cost of said product has decreased ten-fold in the last century (in constant dollars) and we still have people who want what they want and pay $0 for it. I guess when you have a population of spoiled, well fed people immersed in a culture of entitlement and who haven’t the vaguest clue as to the contracting they engage in everyday, this is what you get. Ah well.