Who Really Has the Moral High Ground on Filesharing?

September 22, 2009

A number of people I have talked to claim that they do not engage in filesharing because “it’s wrong,” a sentiment that seems deeply rooted in the idea that sharing files involves taking something that doesn’t belong to you; that is, stealing. These people believe they are taking the “moral high ground” by refusing to participate in this “theft” even when millions of others around the world are doing so. For once I’d like to avoid getting into all of the specific reasons of why filesharing isn’t stealing at all and investigate the idea that this position is actually closer to a moral wrong.

In Society, Sharing is Good

As children, our parents encouraged us to share as soon as our concept of “mine” began to develop. Sharing is one of those behaviors that benefits society as a whole and helps to break us out of a strictly Darwinian existence. If I have two sandwiches, and you have none, I can share with you. We’ll each have a sandwich to eat, helping both of us survive. Instead of a zero-sum situation, where my having food denies you food, sharing creates a net positive situation where both of us can win.

It is through sharing that we develop a culture and advance humanity. Creative works like art and music are, at their core, about sharing with others. They tell stories, reveal personalities, or comment on the world in ways that others can appreciate, forming a part of our culture as they are spread around. Gregor Mendel’s discoveries about genetics had no value while they were gathering dust on the monastery bookshelf; it is only when those discoveries were shared with the world that they became vital.

Infinite Goods Should Be Shared

Say you have something that is good for others, and it is infinite, so you will not lose any of it by giving some away. I don’t think it’s a stretch to say that most people’s idea of morality would dictate that they should share that thing. In general, information is something that can be seen as a public good. If somebody has a discovery or an idea, it costs nothing to give it away, it is not scarce, yet it can potentially benefit the world. Thomas Jefferson said it well:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Content is an Infinite Good

The 21st century has transformed the content that comprises our shared culture from a scarce good to an infinite good. When we were constrained to physical media, a situation was created where only one person could have a given item at a time. Today, thanks to digitization, anybody can make an exact, lossless duplication of their content, effectively increasing the total “units” available. In a situation rather similar to Jesus pulling bread and fish out of a basket, no matter how many times something digital is copied there is always one left.

Thanks to p2p (people-to-people) filesharing technology and the internet, we now have a global distribution network that allows these infinite goods to be shared with anybody who wants it. Anybody with access to content in the form of digital information can spread it around the world, and why wouldn’t they want to? There is no loss to them, yet sharing it can improve the lives of any interested person anywhere in the world with a computer and an internet connection.

Putting it Together

Faced with an infinity of good things in the form of content information, why would somebody chose not to give it away? What is gained by hoarding something that can help others and costs nothing to share? Let’s say you figure out that you can protect people from a deadly virus, say, influenza, with a vaccine. While it costs something to manufacture physical vaccines and mail them to everybody in the world, sharing the information behind it is free. Others can chose whether or not they want to invest money in creating their own, but sharing has given them the option to do so where before it did not exist. Faced with this situation, who would chose to let thousands of people perish by denying them even the potential opportunity to save themselves?

Yet this is exactly the choice many people are making in the name of “intellectual property.” They would rather see others suffer than share something infinite with them, desperately clinging to business models that depend on scarcity. In the 21st century, ideas, information, digitized content are all infinitely available. For these things, the Star Trek replicator has been made, and it’s time to use that as a stepping stone to greater things.

Faced with an infinite supply of information that can potentially benefit billions of people, I chose to share. Those who try to hoard this information are both attempting to drink the ocean and doing wrong.

Published (with commentary) on TechDirt.

63 Responses to “Who Really Has the Moral High Ground on Filesharing?”

  1. Ok, I’m going to pose as your opposition for shits and giggles here. Let’s take a ride! 😀

    I’ll start with the fact that I have shared and taken plenty of content over the years. Before digital distribution was popularized, as it has been with things like iTunes, I was one of the many, many people that got on Napster and downloaded to my heart’s content. This of course continued and exploded into hoarding tons and tons of media with my introduction to DC++ in college. I still circumvent the “system” in order to watch sports games and other TV live through streams rather than paying for cable. This all being said, I never believed I was “in the right” when doing any of this. I simply ignored that fact and moved on.

    Who can deny that sharing is good? If one is in excess of something, she should feel good about spreading the wealth. It’s true that media exists to be shared. Artists reach out to the world this way. They should want their creations to be shared by everyone. Fortunately for them, the digital world is here, and now it’s easier than ever.

    Here we must part ways, if only briefly. It is undeniably easy to replicate digital media of any kind. How could one see this as anything but positive? However, as the system exists today, the problem with p2p sharing of digital media is that consumers have decided that the product they’ve obtained is now worthless and can be distributed ad nauseam. Really, this should be at the creator/distributor’s discretion. Does one get to decide the price of milk at the store? No. Does one designate the price tag on a new car? No. The creator/distributor is the one who makes this decision. We live in a capitalist country where one does her job and gets paid to do so.

    Does this model work for the world of digital media in 2009? No, it’s ridiculous. How can one expect something that is so easily transferable and so greatly desired to remain in one place? Again, it’s silly. Distributors need to get with the times and conceive a new model for business that fits the environment of their product. That being said, I still believe that it is the right of the creator/distributor to make this decision. It is their property, and they should dictate how it is distributed. Hopefully they get the hint from consumers and change their ways accordingly.

    Fortunately, we can see things moving in the right direction. Today we have sites like Hulu that provide us with limited, but free, media. Radiohead digitally released “In Rainbows” in 2007 without a price tag. Nine Inch Nails followed suit and digitally released a few songs to be freely downloaded. These signs of free, legitimate media are hopefully the harbinger of a new future for digital media where we, the consumers, can delight in endless media to our wallet’s delight.

    P.s.
    I hope you enjoyed this.

    • Geoff,

      We live in a capitalist country where one does her job and gets paid to do so.

      No, we live in a capitalist country where (ideally) the prices for things, and the value of jobs, are determined by supply and demand. How is it at all capitalist for somebody to say, “this is how much I am going to charge for something, and it’s the government’s job to make people pay it?”

      Additionally, competition is essential to a functioning free market system. The content industry has made billions by being the primary supplier of its “product.” Today there is a new distribution system that involves people who have something replicating it ad infinitum and giving it away to anybody who wants it. Like it or not, this is today’s marketplace, and any industry that wants to succeed must compete in it. When the railroad comes through the Pony Express just doesn’t seem effective anymore.

      Either way, it’s almost irrelevant; as you agreed, the environment has changed and distributors that want to succeed need to “get with the times.” I think you rather quickly go astray in the next several sentences, though, when you claim that is the right of the creator to “dictate how it is distributed.” As I mention in my comment below, they lose any right they had after they sell it to somebody, for starters.

      More importantly, what is this “free choice” content creators supposedly have? Nobody should have the “choice” to overturn the personal liberties of others, a point that Crosbie Fitch makes very well in his post Freedom of Choice to Enslave. Content creators absolutely do not have the right to invade the homes of others (physically and digitally) in order to police the use of their work. They have the choice whether or not to create something, knowing that by contributing to culture others will enjoy, share, and build upon what they have done. This idea that somebody has infinite control over something they create serves only to stifle creativity and deny individuals access to the very culture they experience every day.

  2. The problem is Geoff, once one person buys a copy of the media, they own it, right? So shouldn’t they be able to do with it what they want, if that includes sharing it? This was never a problem until the digital age because analog copies would degrade over time and people could share over a much smaller area. It was basically impossible for them to be tracked and such a small issue it probably wasn’t worth anyone’s time to enforce it. It’s not to say that their creation is worthless, but once it’s out there you can’t take it back or control it.

    As far as the morality goes, playing devil’s advocate one could say that it’s immoral to deny musicians, actors, etc money for their work because how else are they going to eke out an existence? A flawed argument, I know, as we’ve been over it before. 😛 But until the system changes I would almost feel bad about downloading something as opposed to buying it since even if only a small amount of the money goes to the artists at least some of it does. But then at the same time, unless we force a change by showing we’re not going to support the industry monopolies nothing’s going to happen. We’re never going to escape!

  3. I just like arguing, so here goes. My first issue is with you saying, “Creative works like art and music are, at their core, about sharing with others.” What exactly do you mean by this? Do you mean that that’s the ultimate goal of the artists? I don’t believe that’s always the case. Sharing is critical with art, but sometimes it’s not an end, it’s a means to an end (such as money or popularity).

    My next problem is with this statement: “Say you have something that is good for others, and it is infinite … most people’s idea of morality would dictate that they should share that thing.” Well in a perfect world I would say that yes, they should share it. But this world is not perfect, and the artists need to make money to survive. Given that fact, is it so wrong for the creators of these works to ask a price for copies of what they’ve done? Which is better for society: a band releasing a great album for free and then never releasing anything again (or just releasing less than they otherwise would) because they had to get other jobs to make money; or a band releasing great albums frequently and charging a fee for copies of it (bearing in mind it can still be heard on the radio, streamed online, or borrowed from a friend; all for free)?

    Next point of argument: “… it costs nothing to give it away …” That is not true at all. There is an opportunity cost there. They could have charged money for it and lost potential income. And people are still willing to pay for these things; the number willing to is shrinking, but there are still those willing to pay.

    Next: “Faced with an infinity of good things in the form of content information, why would somebody chose not to give it away? What is gained by hoarding something that can help others and costs nothing to share?” I already pretty much addressed this, but I guess to sum up what I said before, money can be gained by not giving it away.

    Next: “Faced with this situation, who would chose to let thousands of people perish by denying them even the potential opportunity to save themselves?” Decisions aren’t always made by what is good for humanity at large. Say country ‘A’ has the knowledge to make these vaccines and country ‘B’ doesn’t. However, these two countries are in a bloody war. Is it really wrong for country ‘A’ to withhold this information from country ‘B’ even though withholding it could save the lives of people in country ‘A’? I realize this is a very specific example, but it illustrates (I hope) that not sharing information is not necessarily a bad thing. Sharing the information can result in good and bad things, and also, what things are good and bad can depend on who you are.

    Then you say, “Yet this is exactly the choice many people are making in the name of intellectual property. They would rather see others suffer…” That is not the choice people are making at all. Not even close. Not too many people are dying because they can’t get free music. And they aren’t really suffering much either. And I realize you are referring specifically to the AIDS drugs in India. But I have to say, if companies had less monetary incentive to research new drugs, the pace of medical progress would slow considerably. Even if it wasn’t because of greed on the part of the companies themselves, they’d still need funding for their research, and people will give them less money for that if they doubt that they’ll get a profit back because the drugs sell for less (if the research even results in a viable product).

    And I’m finished for now.

    • “Decisions aren’t always made by what is good for humanity at large. Say country ‘A’ has the knowledge to make these vaccines and country ‘B’ doesn’t. However, these two countries are in a bloody war. Is it really wrong for country ‘A’ to withhold this information from country ‘B’ even though withholding it could save the lives of people in country ‘A’? I realize this is a very specific example, but it illustrates (I hope) that not sharing information is not necessarily a bad thing. Sharing the information can result in good and bad things, and also, what things are good and bad can depend on who you are.”

      Well, if we’re talking about sharing for the greater good, I think we’re also trying to think of a better world. Ideally, the two countries would have found a way to avoid the war to begin with and ended up saving more lives. But obviously we don’t live in a perfect world.

      Also, LoneWolf, you brought up artists being compensated for their work. Which is great and something I fully support. Unfortunately, the way the current system works, the record companies and the executives are the ones that make most of the money every time you buy a CD. The same can be said for books, movies, and most media. Focusing on music, the way most bands earn money is through touring and selling merchandise, not through CD or MP3 sales. So if the music is made available for free, it acts as an advertisement. ‘Hey, I liked their last album, and they’re going to be in concert in my area. I’m willing to pay $50 to see them play live.’ So, instead of paying $15 for a CD I’m paying $50 for a concert ticket, where I may buy a T-shirt or something as well, and the band probably will make more than if I had bought five of their CDs.

      It’s a flawed system controlled by monopolies, and it needs to change. If a band I liked wanted to sell me a CD directly, then yeah, I’d buy it, knowing that most of the money is going to them making more albums. But that’s not so much the case today.

    • 1. I contend that creative works that go unshared are essentially diary entires. While it might help you feel better, nobody can appreciate those works, nobody can be influenced by them or understand the artist’s perspective through them.

      Most art, however, is not like this. Paintings and songs evolved as ways of communicating; that is, sharing information with others. And yes, sometimes it is possible to make money from the skillful production of creative works. What I argue against in this post is the idea that filesharing is something that should be considered “wrong,” when in fact, it is something we not only can but should be doing. Producing art and then demanding that it not be shared is self-contradictory, seeing as the only reason it can be shared is because the creator shared it first.

      2. I need to make money to survive, so I’ve set up a sidewalk stand selling perfumed air to passersby. My perfume has a unique scent that I have spent many long hours perfecting, and so if you want to enjoy that as you pass by my table you need to pay me a fee. Also, because I need to make money, the government should station police officers around my table so that anybody who passes by without paying me can be promptly arrested.

      I use this example to illustrate that simply saying “artists need money to survive” is not a valid reason for forcefully protecting dead business models. We as a culture have never been expected to do this before. Were horse breeders “compensated” when horses were no longer a viable means of transportation? When it became cheaper to move freight across the country by rail, were we expected to hold this technology back so that wagon-drivers could make the money they needed to survive? It is not a the public’s responsibility to protect people’s livelihoods when they refuse to adapt and change. We can do all kinds of things to help those in need but it doesn’t make sense to attempt to hold back the development of the world because a few people can’t figure out how to make money in the 21st century.

      Your whole paragraph focuses on benefiting one musical artist at the expense of world culture. I might as well ask you what’s more important, a 16 year-old in Taiwan being able to discover Metallica for the first time or buying Lars Ulrich a third Gulfstream 5?

      It’s short-sighted to think that the only way for creativity to be financially rewarded is the way it has always been done. Even if that was true and there was no possibility of ever making money from creativity again, nothing would really change. You’d still have people composing music, painting pictures, and writing stories. What’s more, none of this content would be isolated – these creative works could and would be shared with the whole world, allowing anybody who wished to benefit from them. Art will always exist, regardless of financial reward, but that isn’t even the case because there are numerous ways to make money off of free content in the 21st century.

      3. Sending a digital file anywhere in the world has costs only in electricity and bandwidth, which for any specific file is minimal. So yes, it is true that it costs nothing to give something away digitally.

      But that’s not what you’re talking about here. The whole “potential revenue” idea really doesn’t make that much sense when you think about it in real-world terms. Let’s say you operate a Pizza Hut and make great money in your town. Later I come along and decide to open up my own pizza place across the street from you, following the same recipe so our pizzas are exactly the same. On top of that, I decide that I’m going to give my pizzas away for free. Some of your customers go get my free pizza instead of paying for yours. How is that my responsibility at all?

      The concept of “potential revenue” is meaningless. The entity attempting to make the revenue is responsible for finding ways of bringing it in, not anybody else. In the pizza place example, you could respond by offering toppings on your pizza, selling frozen deserts, or creating an inviting community atmosphere where people would want to hang out or take their families. The one response that is incorrect would be for you to march angrily across the street and tell me that it is “wrong” for me to give my pizzas away, and I should stop because my generosity is costing you “potential” revenue.

      4. Sure, money can be gained. But what I’m trying to point out is that this hoarding behavior is what is wrong. You can hoard all you want, but if I get access to the same thing I’m going to give it away, because I enjoy sharing with others. I am not wrong because my willingness to share offends your selfishness.

      5. In the global scheme of things, do you think that country A is “right?” Faced with a widespread disease, would not the best moral choice be to suspend the war and distribute as many vaccines as possible? Sure, there are reasons why one would not want to share the information that copyright and patent currently (partially) protect, but are any of them “good?”

      Say you lived in country A and you had access to the vaccine data. Would it not be the “good” choice to share that information with B? While the sharing might hurt A in the short term, overall the choice to help others was (and is) good.

      6. The RIAA would rather see students drop out of school. GlaxoSmithKline would rather see Indians die preventable deaths from the flu.

      The key point is that the “monetary incentive” you describe here is no longer viable, as digitized information can now be freely shared by any who wish to do so. Additionally, as I say in my post, the information does not equal the implementation. Nobody is denying companies the opportunity to profit off of their work. It is simply that people who value the free sharing of information more than short-term monetary gain now have the ability to do so. I think these people are in the right, even though this causes upheaval in the way things have been done for years. There is still plenty of opportunity for profiteering, one simply has to find ways of utilizing the world’s most efficient distribution method instead of attempting to fight it.

    • First @Andrew:

      You state: “…the record companies and the executives are the ones that make most of the money…”

      I’m not arguing against that, but the artist does make some money from the transaction. I think it’s stupid that the companies and executives make such a large share, too. I will however say that the artists were not coerced into signing the legal documents (so far as I know), and they should have known what they were getting into (or could be getting into). I totally agree with music being free being a good advertisement so they can make money on concerts. That would be a good move, what I’m arguing is that they have the right to charge for their music (not saying it’s smart) and that it’s not morally wrong to do so.

      @Steelwolf:

      1. “What I argue against in this post is the idea that filesharing is something that should be considered wrong, when in fact, it is something we not only can but should be doing.” My mistake then, from my reading of your post I gathered your main point was that it was morally wrong not to share; not that it was not wrong (or even morally right) to do so (fine distinction I know, but there is a difference).

      2. “…I’ve set up a sidewalk stand selling perfumed air to passersby.” I don’t really think this is a good comparison since people would have to go out of there way not to get the product for free.

      “…not a valid reason for forcefully protecting dead business models.” I never mentioned forcefully protecting dead business models.

      “Were horse breeders compensated when horses were no longer a viable means of transportation?” The cause of their woes wasn’t people taking their horses for free.

      “…were we expected to hold this technology back so that wagon-drivers…” The problem wasn’t people stealing wagons.

      “Your whole paragraph focuses on benefiting one musical artist at the expense of world culture.” Not true, I said them making money on it would allow him to make more music to benefit the world culture.

      “It’s short-sighted to think that the only way for creativity to be financially rewarded is the way it has always been done.” I agree, I never said the way it is, is the only or best way to do it. I think it should change, however, I think the businesses are the ones to make that decision (either the current business or new entrepreneurial enterprises). And I’m not saying the consumer has no voice in the matter, they need to act as the catalyst through their actions to get the companies to change their business models (and I realize I’m sort of saying consumers should file-share here, which I’m not arguing against; my argument is on the business-side: what the business or artist can/should do).

      “Art will always exist, regardless of financial reward…” I agree, I’m saying there would be less of it.

      3. “The entity attempting to make the revenue is responsible for finding ways of bringing it in, not anybody else.” I agree, I wasn’t talking about a third party offering the same product and the first company being to dumb to change their business model. I was talking about the first company having the right to charge for their product if they so wish and not being morally wrong for doing so. It does cost you to give something away if you can charge money for it instead and still get people to take it. And there are still people willing to pay for music, so companies lose potential revenue if they give it away. I’m not saying the negatives of giving away music outweigh the positives here, I’m saying there are negatives currently (though for how much longer I don’t know).

      “Some of your customers go get my free pizza instead of paying for yours. How is that my responsibility at all?” Well I would say you were the direct cause of that, but I wouldn’t say you were wrong for doing it (unless I had some legal protection on my recipe).

      4. “But what I’m trying to point out is that this hoarding behavior is what is wrong.” I disagree, it may not be intelligent, but that doesn’t make it wrong.

      “I am not wrong because my willingness to share offends your selfishness.” Well that’s getting a bit personal there. For one thing, I’m trying to state things from the companies’/artists’ POV, not mine. Also, they think of it as self-preservation and not selfishness, and to a certain degree, I would agree. Is it the only way of self-preservation? No. Is it the best way of self-preservation? Probably not. Will it work? Almost certainly not. But it’s the way they’ve chosen, and they have the right to choose it (just as we can choose to download for free).

      5. “In the global scheme of things, do you think that country A is right?” I do not think so at all. What I’m saying is there is no morally right decision, since it is a morally gray area. It’s more complicated than just “right” and “wrong.”

      6. “The key point is that the monetary incentive you describe here is no longer viable…” Since there are still people paying for the more expensive option it is still viable. It’s not as viable as it once was, and it won’t be viable forever, but it is currently still viable.

      I guess the main thing I have to say in response to this is that I wasn’t arguing against file-sharing. I was arguing against it being wrong to ask a price for something that can be given away. Whether it is intelligent to do so is another issue.

  4. And a comment snuck in before I finished typing my last comment, so I’ll just make a quick comment on that one.

    Andrew says: “The problem is Geoff, once one person buys a copy of the media, they own it, right? So shouldn’t they be able to do with it what they want, if that includes sharing it?” Now I don’t know all the legalities here so someone correct me if I’m wrong, but when some one “buys a song,” isn’t what they are doing much closer to buying the right to listen to that song whenever they want, than to buying the “rights” to that song?

  5. @Andrew, LoneWolf:

    I would agree with you there LoneWolf, which is why it should still be under the discretion of the creator to distribute as they see fit. For example, we don’t buy software; we buy licenses. Most software can be download, but activating requires one to own a license. Most definitely in this case, we’ve purchased the right to use it and not complete ownership over the intellectual property.

    Despite all of this, I feel in the end we are simply faced with the fact that altruism is not a highly regarded ideal in the business minds of our society.

    • I’m going to jump in and head this one off at the pass. As much as the content industry would like you to believe you are simply buying a “license” to use their “product,” one that can be revoked at any time and subjected to arcane limitations and additional charges, this is not the case.

      When you purchase copyrighted content, “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Copyright Act of 1976, 17 U.S.C. § 109 This is a pretty fundamental provision of copyright law that is more commonly known as the first-sale doctrine; essentially, I can do what I want with something I have legally purchased. This is why used book stores exist, or how stores like GameStop and EB Games are able to make big bucks buying that used game you bought at $60 for $6 and then reselling it for $45. Once something has been releases “into the wild,” so to speak, it is free to be traded about on the secondary market. Research shows that a robust secondary market actually increases the value of the item because people are more likely to invest in it if they know they can resell later if they wish.

      In this case, Andrew is correct when he points out that people have the right to do what they want with something they own, including sharing it with others. The difference is that just a decade ago, that sharing would more or less be limited to people Andrew interacted with on a regular basis. Internet p2p networks have made Andrew’s “neighborhood” the entire world, but he is still sharing something that he lawfully obtained (something that often occurs on music-centered p2p networks). Although I’m beginning to stray a little far afield from my original post, the claim is that this widespread, noncommercial sharing is “distribution.”

      The content industry would love to eliminate people-friendly ideas like first sale, because that would give them ultimate control over any and all uses of what they produce. Fortunately, that is not the case and attempts to do otherwise are not only unethical, but unlawful.

    • Reply to SteelWolf:

      “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”

      I believe what we’re talking about is people not giving away the copy they legally purchased, but copies of that copy.

      But actually, now I have to think about that some more. It just says the owner of a legal copy, not the original copy. I guess we can legally make copies of something we own, and then according to this I guess we can give away those copies. So unless someone else comes up with an argument against it (since I’m too lazy and don’t care enough to look at legal documents), I will concede this particular point to SteelWolf.

    • Now that I think about this yet again. It’s probably illegal to make copies with the intent of distribution. However it would probably be legal to make copies for your own use and then give those away.

    • LoneWolf,

      Copyright law was designed to prevent book publishers from waiting for their competitors to pay for the exclusive privilege to print a book and then publishing copies of their own. When people duplicate DVDs and sell them off the back of a truck they are engaging in “piracy.”

      Nobody (aside from the content industry, which has been firmly against individual rights since the 1700s) disagreed with the idea that once something was purchased, the purchaser was free to sell, trade, or share it.

      The difference is that now everybody from middle schoolers to senior citizens are sharing the content they love with their friends all over the world. These people aren’t trying to be “distributors” and collect money. They’re doing it for nothing, because they have something that is good for others to have as well and they have the power to share it with them.

      So yes, I agree with you that the intent matters – if you’re trying to make money, you’re wrong. But anybody sharing “their own stuff” with others is right, in my opinion, over and beyond the law. Geoff is incorrect to believe that copyright law allows rights-holders to dictate how that content is used after it leaves their hands.

      For what it’s worth, I think that the state-granted exclusive right to distribution has been rendered useless and unenforceable.

  6. I haven’t spent much time delving through this, but if we read beyond your quote from subsection (a)…

    “(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.”

    Unless I’m missing something, the copyright owners are legally in control of their content.

    • I would argue that it is nonprofit rather than noncommercial. There still exists an exchange of goods. That being said, (A) would still apply. Let’s assume one has obtained ownership of a copy of something from the copyright owner; subsections (a) and the following apply:

      “(c) …the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”

      Finally, a caveat to subsections (a) and (c) can be found in (d):

      “(d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it. ”

      Simply, if one hasn’t acquired ownership of the copy in a manner authorized by the copyright owner, then none of privileges or rights in (a) or (c) apply. To relate (d) specifically, one might have obtained possession of a copy through p2p sharing (which I see easily fitting under “rental, lease, loan, or otherwise”), but they have most definitely not acquired ownership. Hence, not even the rights or privileges afforded by (a) and (c) apply.

    • First sale means that after somebody buys a copy from a store, they can do what they want with it, including selling and renting it. The only exception to this is for musical recordings, where you cannot rent the works for monetary gain. This is why there are video rental stores but not CD rental stores. There are, however, plenty of secondhand music shops where people freely buy and sell musical recordings they have purchased.

      The above has been affirmed by the court and isn’t the point of contention.

    • @g3off:

      I disagree with your paraphrasing of the legal-speak. I see nothing that hints at “in a manner authorized by the copyright owner.” It seems to just be saying you have to own it rather than be borrowing it.

    • The Wikipedia article neglects to mention the part where it says for the purposes of direct or indirect commercial advantage. This is critical, as it says absolutely nothing about noncommercial activity where no money is changing hands.

      Buying a CD from the store and giving it to your friend is legal under copyright law, and requires absolutely no authorization from the copyright holder whatsoever.

  7. Sorry, old bean, but this type of sophistry gets you nowhere! This is classic Greek-style argument – sounds good, but doesn’t stand up to scrutiny in the real world.

    Yes, we teach our children to share. We also teach them the value of a dollar and that you have to work for what you earn. Taking simple moral tenets and trying to apply them ti file-sharing is elementary and simply bad debating.

    If I were judging this debate – you lose.

  8. @SteelWolf:

    Then again in that case, you’re not distributing. You’re giving away your sole copy. And as I mentioned before, I would say it is nonprofit rather than noncommercial.

    Regardless, I think subsection (d) clearly states that if you do not have ownership then none of the above privileges apply. Of course now, we’d be getting into what the legal definition of ownership is vs. possession. That sounds like a judges decision to me 😀

    • What’s great about digital technology is that by giving things away, I increase the total number of copies available. Now everybody can have one for no cost at all – wow! It’s almost like buying a 10-pack of tshirts and giving them out, only the more I give, the more I have, so that everybody who wants one can have it. By your own logic above, as long as all of the copies come from the person who originally bought it, it’s fine. Yet every copy is indistinguishable, so who’s to say which one is an “original copy” and which one is a “copy of a copy?”

      Even if you want to claim that this qualifies as distribution, it is a) nearly impossible to prove by actual standards of evidence b) impossible to enforce and c) not at all “wrong.” Sharing something infinite is a good thing – what is wrong is to try and prevent others from having it, when doing so is no actual loss to you.

    • I’m really not trying to be the bad guy here. I think it’s great to be able to share media content to anyone, anywhere. I’ve already said this. I also agree that things need to change legally to support this. So, all that I’m saying is that in the current system, this is not permitted. I pointed out in the act that you quoted, under subsection (d), that if you’ve not acquired legal ownership of the copy, then the privileges associated with owning it do not apply to you. I’m not disagreeing that it’s for the greater good to want to spread something that can exist into infinity. I’m saying there needs to be a change because as is, the law doesn’t agree with us. Hahaha, I don’t make the laws; you don’t have to convince me that they don’t make sense.

    • In order to avoid contradicting myself, I have to concede that the original owner, who purchased it legally, has their right to do with it what they want. If you were not this individual, however, you are not afforded these rights. Can we agree on this? If so, then this really makes the law look ridiculous. Following this logic, I could purchase content and give away 100 free copies and no one could stop me. However if you were to be the recipient of one of these copies, it wouldn’t be within your rights to repeat what I did. But at this point, what does it matter? I, the legal owner, could spread it around just as much as multiple people could except at a slower pace.

    • That is correct, which is why the “exclusive distribution right” IS ridiculous. Copyright made sense when there were only three people with printing presses for 200 miles around. When every single person has a potential digital “printing press” at their computer, and these people’s “distribution method” is exponentially more efficient than the old way of shipping boxes of media around in boats and planes, AND we have written the law to ensure that individual rights are protected, it’s pretty silly to think that being told you are the “sole distributor” of something is meaningful.

      Copyright owners would love to be the only ones with the ability to “own” things. That way they could sell you a CD with a hit song on it, sell you the same song as a “digital download,” sell you the same song a third time as a ringtone, and still charge you if you play it at a party or if you want to perform a cover of it with your band. Thankfully the law does not work quite like that, which means the current industry must chose between changing or becoming obsolete. They seem to have placed themselves firmly in the latter category.

  9. Charles H Murphy

    Man, I really, really, really didn’t want to participate in this, but you’ve left me no choice.

    First, we need to get something straight here. America is not a socialist society. It is a capitalist society. Although government intervention may make it appear as though some policies are making certain goods available to everyone at no cost, this is not true. Taxation will quickly quell that false assumption about how we obtain certain things in society seemingly without paying for them.

    With that being said, let’s have a little lesson in the most important (in my opinion) types of goods that exist in our society to see if resisting file sharing truly is a “moral wrong.” We have public goods, private goods, and merit goods.

    Public goods are things where the consumption of that good does not reduce the availability of the good for consumption by other. This is most commonly where file sharing would be grouped since the digitized media can be shared infinitely without diminishing the experience of the original owner of the media. Other examples of this could be breathing air, swimming in the ocean, and so on. In general, breathing air and swimming in the ocean is deemed to be free to consume at no cost. These public goods are free unless you are consuming them in an area of the world not owned by you. In fact, every publicly maintained beach in the world is only sustainable because of tax dollars. If you want to go and swim at Ocean City, you really aren’t swimming for free since your tax dollars fund the boardwalk, the upkeep of beach (protect from erosion, etc.), and the lifeguards–to name a few things. The same goes for breathing air. How are we funding the green movement against fossil fuel burning? The government is subsidizing it. Now I know these seem like two fairly abstract and potentially asinine examples pertaining to how a public good may not be free, the same goes for digitized media. Since that media is available in a market where, in that market, it has a price, that price should stay with the good. Digital media is a strange public good since it is non-rivaled and non-excludable good, but the problem is that that good was created with the intention of being sold in a market. Take iTunes, for example. How do they get their media to customers? They allow you to download a copy of it for a fee. This fee is assessed and given to both the artist, the music producer, and iTunes. Why is this done? Because it is worth the price paid, otherwise people would not be paying that price. Filesharing is no different than operating your own iTunes venture, except you are not rewarding the artist who produced the work with the price that has been set by the public. You are therefore creating more copies of something at a price of zero, which effectively will drive the overall price to zero if file sharing occurs into infinity. Let’s say we all became tax evaders. Do you think that people would still agree that swimming really is free when the beaches become infested with garbage and habitat destruction? Do you think that people will still agree that breathing really is free as our lungs become filled with smog over time? My point here is that seemingly free and publicly obtainable goods do have a cost driver behind them, whether it is obvious or not.

    Let’s look at private goods now. These are goods where it is possible to prevent consumers who have not paid for the good from consuming it. In addition, consumption of this good prevents the consumption of the good by others. Some obvious examples of this would be a sandwich, a milkshake, clothing, and so on. These types of goods are made almost exclusively for profit, where as, public goods do not necessarily exist for profit (although they may cost money to maintain — similar to a non-profit enterprise). Media in its raw form (as a cd, dvd, and so on) unequivocally fits the description of a private good. However, digitizing this good makes it appear more like a public good, as I just mentioned. So how can it be both a public and a private good when these two are polar opposites? Well, let’s ask ourselves this: Was the media originally made with the intention of being for profit or not for profit? I think the answer is for profit unless your name is Radiohead and you’ve made too much money and just want to give away your In Rainbows album for free. Therefore, digitizing media is simply a function of new technology. While leveraging the new technology, I would say the probability that music artists and actors alike still want to keep that for profit mentality is 100%. Now maybe if singers and actors invented digital media exploitation, then one could argue that they clearly had the intention of distributing the product for free, but I somehow doubt that is true. Now what type of society did I say we live in? We live in a capitalist society. Therefore, artists, actors, you, me, and everyone else wants to deliver a product for a fee at a price that consumers are willing to pay. If a price exists in any market for a good where the creators of that good are looking to earn money, and you choose not to pay that price while still obtaining the good, then this is morally wrong, like it or not. Think about medicine for a minute. Many medicines come from natural herbs that could be easily grown by any person in the world. Why isn’t all medicine free then? Is it ok to just take all the Echinacea I want? For reasons beyond the scope of this discussion, no it is not ok. Why isn’t it ok? Well because pharmacists worked diligently to develop that vitamin. Sure, a seemingly infinite supply of this could theoretically be created. But does that make it free? I think you know the answer. Back to digital media. The artist worked diligently to develop that album. Should they be paid if people are willing to pay for it? Yes. I know I’m supplying some pretty bogus examples, but I’m doing it to show how similar digital media is to a lot of other consumer goods that I’m sure all the file sharers out there are perfectly fine with paying for, so then why is file sharing without paying ok?

    Lastly, we have merit goods. This is a good that should be available to all people based on a need for it, not a willingness to pay. Some examples of this would be the distribution of food stamps, universal healthcare, housing subsidies, and so on. All this talk about file sharing being ok makes it sound like people need file sharing in order to survive. Does that sound as ridiculous to you as it did to me when I was typing it? I would hope so. Merit goods are not the by-product (albeit denouement) of a socialist society because they exist in an effort to ensure that the wellbeing of society is maximized. Socialist ideals assume that income distribution should essentially be independent of hard work. While some might argue that taxing the rich is a socialist ploy by the government, I could easily crush that argument, but this is not the place for that either. Let’s stick to file sharing. How is file sharing improving the greater societal utility function? Can we survive without it? Yes. Ok, so how is it a merit good? I’m not trying to say that it is. I’m just trying to show how it is not even though some of the arguments for file sharing sure make it sound like it should be considered one.

    The main premise behind my argument here is that our capitalist society deems certain goods to be worth something so that we can all have a profession that allows us to be as successful as our hearts desire. So people who don’t acquiesce to the file sharing movement are not hoarding information so that they can prevent the public from obtaining something potentially beneficial to society. They are choosing to oblige by the laws and regulations that govern this nation. These laws and regulations say that something that is released as a for profit good cannot be consumed, in a digital fashion or not, without consent of the owner (which g30ff alludes to above). I too may not agree with how our society is governed in every way, but I do understand it. I also understand what type of good file sharing is. And it is a good with a price, no matter how we choose to obtain it.

    • @Charles H Murphy

      You state: “Since that media is available in a market where, in that market, it has a price, that price should stay with the good.” There are a few different things you could mean by this. Do you mean there should be no secondary market with a cheaper price? Do you mean the price should be the same in every market? I would disagree with either of those sentiments. Of course it is possible you mean something else entirely.

    • It sounds to me like he’s falling prey to the common fallacy that because somebody has charged a certain price for something in the past, they should always be able to charge that price for it. That’s not true. Technological developments routinely transform the way the marketplace works, making some things that once had value worthless and elevating other things to desired status.

      Aluminum used to be so difficult to refine that it was more valuable than gold. Presumably there were people making fortunes on the metal right up until more efficient ways were developed. A metal that was once prized above all others is now made available in a cheap foil in Wal-Mart.

      That’s the market at work. We’ve seen a drastic change in both technology and distribution method which makes physical media a collector’s item rather than the norm, and enabled digital media to be spread around infinitely and virtually without cost. This is a good thing, but it requires a few people still stuck in the last decade to change their business models if they want to continue to make money. Instead they’re throwing millions into useless court battles and misinformation campaigns designed to get regular people thinking that it is “wrong” to share things you like with your friends.

  10. Charlie Murphy

    Digital media is not a secondary market for old school media. A secondary market would be the cost of pollution stemming from the price of gasoline. In this case, digital media is simply a carbon copy of a compact disc, which does have value. What I am talking about is one consumer market vs. another. We have a market for fruits and vegetables just like we have a market for stocks. When I said what I said above, I was talking in terms saying that the exact same product is available in various consumer markets. Rendering digital media to a state of worthlessness because of some technological advancement in a new market is just a means for justifying something that is wrong.

    And yes, they can always charge a price for it so long as one, single person is willing to pay it. That’s how the law works in America.

    • Old school laws allow for a secondary market to exist after something is purchased. Think of filesharing as a global yardsale where infinite copies of things originally purchased are traded. This secondary market is so good it dwarfs the primary market – selling copies is no longer a viable way to make money.

      Mr. Murphy, if we could infinitely replicate bread, who is right? The person who gives it away to starving children in Africa or the person who wants to keep it to themself so they can keep charging for it the way they always have?

      You’re right, people can always charge a price for something. But customers don’t have to choose to get it from that person. That’s how the law works in America.

  11. Mr. Murphy:

    The crux of your argument seems to be that
    1)Because people want to charge for something at a certain price, everybody is obligated to pay them.
    2) Because it cost money to produce something that can be copied and distributed free of charge, everybody is obligated to pay them.

    1) is false because the entire market sets the price of something, not a single monopoly power (ideally). The content industry doesn’t have a monopoly on distribution anymore and an infinite supply of digital copies has driven the cost of them to zero. The question is, “now what?” How can a business compete in this new marketplace? Those who answer this question stand to win big.

    2) Sure, it costs money to record a song (not nearly as much as it used to, but I digress). It also costs Google boatloads of money to run Gmail. Thanks to digital technology, song recordings are an infinite resource which should be shared. So, if you’re going to do the public a favor by spending money to produce something free, and you want to make money, you need to find an alternative way of getting that money. Google is currently one of the most successful companies in existence, yet many of their services are absolutely free. They’ve figured out a way to leverage free to their advantage – why is it so difficult for some to understand that creative workers can do the same thing? In fact, many people are already doing this. It’s just a few vocal dinosaurs that are trying to convince everybody that their 20th century business models need to be artificially protected.

    • This is even better. Just today a few Canadian law professors made the same argument in regards to patent as Charles:
      Patents are essential to the modern system of innovation. Once produced, information can be transmitted at zero cost. In the absence of patent protection, would-be inventors become vulnerable to competition that would drive the value of their discovery to zero, leaving them with no compensation for the costs of producing that information in the first place.

      Mike Masnick of TechDirt replies:

      This is the usual story. And it sounds good. But there’s no factual evidence to support it. That’s because it ignores reality. Yes, information can be transmitted at zero cost, but that does not mean that implementation is assured, or that the market stands still. Besides, I’m curious as to the claim “vulnerable to competition,” as if competition is a bad thing. Most people recognize that competition drives innovation — and yet, these law professors are suggesting the exact opposite. That you need less competition to drive innovation.

      Furthermore, they are wrong in claiming that in the absence of patent protection “the value of their discovery” is driven to “zero, leaving them with no compensation.” They say this as if the compensation is for the idea, rather than the implementation. That is simply wrong. No one compensates you directly for an idea. If you have a good idea, you need to bring a product to market and sell it. If someone else copies that idea, you still have a large first mover advantage and you understand the market better. On top of that, you should be ahead of the curve in terms of improving on the concept for the next iteration. That’s competition. It doesn’t mean the value of the idea is zero or that there’s no compensation. Claiming such makes no sense.

      The rest of his response is excellent as well, and very relevant to this discussion.

    • I’m unclear as to what I’m not getting. It sounds to me like you’re saying that rules of scarcity need to be applied to non-scarce information because it cost something to make it and the makers expected to get money from it. The first can be recouped through alternative means and the second is a misunderstanding of how the market works.

  12. Charlie Murphy

    That’s what I’m saying. If you don’t agree, I don’t really care. Hence me saying agree to disagree. But I am pretty darn sure I’m right in this case (maybe not in all cases when you’re dealing with something that isn’t scarce, but in this one, yes).

    QED

  13. What a complete load of fucking bollocks.
    A writer / musician / film-maker etc has the RIGHT to make money and own their creations.
    THEIR CREATIONS.
    They don’t belong to anyone else unless they CHOOSE to distribute them.
    Just because the technology exists, doesn’t mean it’s right. The technology is there to shoot you. Doesn’t mean it would be right (hmm).
    Your sense of entitlement is typical of the keyboard philosopher / slacker who has no empathy for those who create all the media and art they enjoy and consume, but ultimately sees these things as disposable.
    Just a philistine and coward who has been given a voice by the internet.
    This is our CAREER, not a hobby.
    Maybe I’ll come round to your house and rob all your possessions – then share them out to whoever I like.
    Would that fir your model?

    Fuck you.

    • There are a number of fundamental problems with your argument, but I’ll let that be for now. Just think about this – if all of my possessions were infinite, and you took them all, we’d both have them. Each of our lives would be enriched by sharing.

  14. Henry Emrich

    http://www.techdirt.com/articles/20091001/1805496397.shtml

    Salient quote:
    “”The transfer of AutoCAD copies via the license is a transfer of ownership.”

    To my way of thinking, this seriously calls into question every EULA that attempts to put “no resale” clauses into it’s license — for the same reason that there’s a “first-sale” exeption covering physical books.
    The “first sale” doctrine comes out of a court deicision where a publisher attempted to stiuplate that people could only re-sell THEIR copies for a minimum price (2 dollars, I believe) and that anything else was a violation of the publishers’ copyright.

    Thankfully they got slapped down on that but the software publishers have been trying to play that game for years:

    Salient quote:

    “In that case, the publisher, Bobbs-Merrill, had inserted a notice in its books that any retail sale at a price under $1.00 would constitute an infringement of its copyright. The defendants, who owned Macy’s department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrill’s consent. We held that the exclusive statutory right to “vend” applied only to the first sale of the copyrighted work…”

    http://en.wikipedia.org/wiki/First-sale_doctrine#Case_law

    In any case, this has absolutely no bearing on who has the moral high-ground on file-sharing. Questions of “moral high-ground” go right out the window, when you take into consideration that copyright term lengths keep being raised semi-randomly, in hopes of eventually killing the “Public Domain” off, entirely.

    l8r

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