Misleading Metaphors That Drive The War On Online Sharing

[HansTWN]

Originally Posted by Steven Lyle Jordan

It's been awhile since I've seen a thread of this subject that, by now, hadn't completely devolved into pure insult and irrationality. Kudos to all. Some points:





I think both of these comments are vital to this discussion, as the first represents a set of "metaphors" that might suit ebooks better than most product/services, and the latter raises an important concept also touched on by cable services.

I remember when cable services were rolled out in our area, and right away, consumers were trying to figure out how to "steal" cable signals from neighbors, what rights they had to run lines through their homes and create multiple outlets out of one, and why they were suddenly paying for something they used to get for free (excepting the cost of a television).

The customer logic was that the cable companies weren't "losing" anything through cable sharing. It was the same show, whether they got it over the air or from a spliced cable, and they'd never paid for it before. In one sense, it seemed a logical argument.

The cable companies didn't see it that way: They were creating infrastructure and providing a customized access to video materials, even if they didn't create the materials themselves; in short, they were providing a service to customers, and customers were free to pay for the service, or get their TV elsewhere.

Cable services put a lot of effort into working out problems like that, mostly through massaging laws and offering value-added extras to their services. They have been largely successful over time in satisfying customers that they are getting a valuable commodity for their money (content quality notwithstanding), and getting legislatures to back their assertion that their services could not be "pirated" without prosecution. Today, most customers do not obsess over attempts to "pirate" TV signals... they are more likely to complain about not liking the content on the 500 channels they pay for.

"Theft" of ebooks is, in many ways, similar to cable "theft," in that strictly speaking, there is no loss of physical product involved; it is considered a theft of service, the idea that you are legally expected to pay for their services provided, or go without.

The discussion about the $1400 software touches on this, as there is no "justification" for unauthorized access to something you don't need to survive; you either pay to use it, or go without. All software, from $1400 CAD programs to $5 MP3 rippers, go by this legal assumption, and it is understood and (mostly) accepted by all parties involved. (The argument that "I need this software for (work, school, whatever)" is not justifiable; if you can't afford the materials needed to follow a vocation, you simply choose another one you can afford. Society has no obligation to let you steal the supplies you need to follow a particular career choice.)

Therefore, ebooks should be considered in the context of software and broadcast services, as a digital file created by a service and offered by a provider (and therefore requiring the mutual agreement of the customer to compensate the service/provider for their work as requested), and protected by the same statutes that prevent unauthorized re-broadcast or reuse of broadcasts. This makes much more sense than looking at ebooks specifically and solely as analogues to the physical products that they replace, a model that has proven to be unworkable in the marketplace even if it seems logical on its surface.

From that foundation, we ought to be able to make the required adjustments for the realities of the internet and digital devices to ensure the proper adherence to these considerations, and most importantly, establish a way to identify and prevent unauthorized activity.

Boy, I have said way too much. Moving on!

For those that don't want to pay, just stay away from it. Arguing semantics over whether it is correct to call it theft or not and what your intent is? That does seem like trying to make up excuses. The point is, downloading without paying is wrong. There are plenty of free or cheap alternatives, there is no need or natural right to have a particular book. And by now, due to aggressive campaigns by the industry, everybody knows that most "sharing" is illegal. So claiming ignorance really is not believable in any case. Not that it matters if you know you are breaking the law or not.

So while the word theft is not exactly right (if you closely follow the definition), theft is appropriate in that it has a strong, negative meaning. Nobody wants to be called a thief. If everybody used the word theft, I am sure that a lot more casual downloaders would think twice -- and that would be a very good thing. And whatever word is being used to describe the act of illegally downloading copyrighted material, it must be a word that clearly implies wrongdoing.

[teh603]

Originally Posted by HansTWN

For those that don't want to pay, just stay away from it. Arguing semantics over whether it is correct to call it theft or not and what your intent is? That does seem like trying to make up excuses. The point is, downloading without paying is wrong. There are plenty of free or cheap alternatives, there is no need or natural right to have a particular book. And by now, due to aggressive campaigns by the industry, everybody knows that most "sharing" is illegal. So claiming ignorance really is not believable in any case. Not that it matters if you know you are breaking the law or not.

So while the word theft is not exactly right (if you closely follow the definition), theft is appropriate in that it has a strong, negative meaning. Nobody wants to be called a thief. If everybody used the word theft, I am sure that a lot more casual downloaders would think twice -- and that would be a very good thing. And whatever word is being used to describe the act of illegally downloading copyrighted material, it must be a word that clearly implies wrongdoing.

The only trouble is, the guy(?) you quoted was writing from a standpoint that truly free software (as in OpenOffice and Linux) is the same as downloading an illegal copy of commercial software. It could also get in the way of people taking advantage of their freedom to choose software if they thing that all software has to be paid for and free open- source software is somehow inherently stolen or bootleg.

He also (inadvertently?) made some troubling commentary on the Hobbesian social contract and whether or not humans have any kind of moral obligation for mutual assistance, but the details would probably be lost on most people here.

[HansTWN]

Originally Posted by teh603

The only trouble is, the guy(?) you quoted was writing from a standpoint that truly free software (as in OpenOffice and Linux) is the same as downloading an illegal copy of commercial software. It could also get in the way of people taking advantage of their freedom to choose software if they thing that all software has to be paid for and free open- source software is somehow inherently stolen or bootleg.

Sorry, where do you see that in his post? Still most free software providers request that you only download from their servers and not directly distribute the installation file to others but only the link to that file. And many don't even stick to that (talk about helping those that help you!) --- that would also be piracy, even with free software.

[Elfwreck]

Originally Posted by HansTWN

For those that don't want to pay, just stay away from it. Arguing semantics over whether it is correct to call it theft or not and what your intent is? That does seem like trying to make up excuses. The point is, downloading without paying is wrong.

If my daughter downloads an ebook from my Smashwords account, is that wrong? She can't buy it for herself--she can't legally *have* a Smashwords account. I can't buy two copies; Smashwords doesn't allow that. And somehow, I'm failing to see the immorality of sharing ebooks with people who live in the same house with me.

Downloading a copy of something where no version is likely to be offered for sale--like orphaned books with no legit e-version, or abandonware games--is hard to insist is "wrong," because it's not hurting anyone to spread the copies around, and the idea that we should abandon large swaths of our cultural history to reinforce Disney's claim on their products is a bit ridiculous.

In the Sony vs Tenenbaum case, the judge allowed that unauthorized downloads of content with no purchasable version might be allowable under fair use. And in Suntrust vs Houghton Mifflin (the "Wind Done Gone" case), it's pointed out that "The law grants copyright holders a powerful monopoly in their expressive works. It should not also afford them windfall damages for the publication of the sorts of works that they themselves would never publish, or worse, grant them a power of indirect censorship."

The copyright monopoly is not the same as "nobody can use my works in a way I don't want them to."

And whatever word is being used to describe the act of illegally downloading copyrighted material, it must be a word that clearly implies wrongdoing.

"Copyright infringement" specifies wrongdoing. If it doesn't have the same emotional impact as theft, that's because copyright was developed as a matter of corporate legalities and was never designed to apply to individual citizen activity... until corporations figured out that it was easier to chase down US college students than Chinese bootleg companies.

It doesn't help that "illegally downloading copyrighted material" can't be defined until one is taken to court. How much is legal to copy for a review? Nobody knows until the lawsuit is done. Is a particular copy for educational purposes legal? Again, no way to tell. Is it legal to share a video taped at a wedding with copyrighted music playing in the background? Is it legal to make a mix tape of songs with a specific theme? (When my husband was courting me, he made a mix tape for me. Should he have been fined a million dollars for it? If he'd uploaded it to dropbox, should he have been fined?)

There is no "well, everyone knows THAT ACTION is illegal." Even uploading a complete copyrighted work for public download has to be measured against the four factors--and if there's no authorized digital version, and no intention (or ability) to release one, it's hard to claim the unauthorized one is infringing--it's not cutting into profits or exploiting a market that the original could otherwise take advantage of. If the uploaded version is accessible to people with disabilities, and the authorized version is not, again, infringement is harder to claim.

OTOH, maybe I should be fighting for the stricter interpretations of copyright law, so I could make blog posts and then sue anyone who copies them to their computers without my permission.

[HansTWN]

You mentioned fair use exceptions -- not illegal downloads. I fully support these.

[HarryT]

Originally Posted by Elfwreck

Even uploading a complete copyrighted work for public download has to be measured against the four factors--and if there's no authorized digital version, and no intention (or ability) to release one, it's hard to claim the unauthorized one is infringing--it's not cutting into profits or exploiting a market that the original could otherwise take advantage of.

It's not hard to claim at all. A copyright holder has the right to control copying - that's what the word copyright means - and those right include the right to withhold the work from publication if they so choose. Profit may a factor in determining the punishment for copyright infringement, but it doesn't determine someone's guilt or otherwise in committing the infringing act.

[Steven Lyle Jordan]

Originally Posted by Elfwreck

The legal precedents following those rules allowed for taping movies & sharing them with friends. Allowed for time- and format-shifting for personal & family use. Allowed for mix-tapes of movie clips to be made for entertainment or educational use. Allowed for copies to be played on multiple devices, as many as a person wants to buy. Allows the copies to be carried to a friend's house to watch on his 42" TV.

Publishers don't want to say, "it's like cable," because cable allows a lot of activities they want to prevent.

Actually, most of those things are considered okay by legal precedent of fair use. The one real flag is "sharing with friends:" In that situation, the ebook is treated like the cable "service," and those who receive that service are expected to pay for it.

It's true that the cable metaphors don't line up exactly. As I said, ebooks are like a comparable combination of cable service and software, a unique product that demands unique rules. But cable metaphors are still the best place to start.

Originally Posted by Elfwreck

If you honestly believe that distributing free e-copies increases physical sales, you're not violating this law.

Ignorance of the law has never been an excuse.

[Steven Lyle Jordan]

Originally Posted by teh603

The only trouble is, the guy(?) you quoted was writing from a standpoint that truly free software (as in OpenOffice and Linux) is the same as downloading an illegal copy of commercial software. It could also get in the way of people taking advantage of their freedom to choose software if they thing that all software has to be paid for and free open- source software is somehow inherently stolen or bootleg.

Are you questioning my "guy"ness?

Originally Posted by Steven Lyle Jordan

Therefore, ebooks should be considered in the context of software and broadcast services, as a digital file created by a service and offered by a provider (and therefore requiring the mutual agreement of the customer to compensate the service/provider for their work as requested)

Note the emphasis above. This means that the provider can, if they so choose, decide to give their product/service away, so of course a consumer then has the right to obtain a copy without paying for it.

Originally Posted by teh603

He also (inadvertently?) made some troubling commentary on the Hobbesian social contract and whether or not humans have any kind of moral obligation for mutual assistance, but the details would probably be lost on most people here.

Are you trying to say that consumers have a social obligation to steal in order to give to others who cannot? If so, by all means, let's discuss.

[teh603]

Originally Posted by Steven Lyle Jordan

Are you questioning my "guy"ness?

Impossible to tell one way or the other on the internet. For all you know, I could be an AI being run in the back room of an Anonymous server farm. *shrug*

Note the emphasis above. This means that the provider can, if they so choose, decide to give their product/service away, so of course a consumer then has the right to obtain a copy without paying for it.

I didn't get that when I read it the first time.

Are you trying to say that consumers have a social obligation to steal in order to give to others who cannot? If so, by all means, let's discuss.

No, but societies do have to hang together for mutual assistance to a greater or lesser degree. That aspect of it has only broken recently with the dawn of industrialization.

For example, a carpenter buys a new lathe; the one he has is getting old and worn out. He has a shop garage sale, and sells the old lathe to a poor carpenter who fixes it up a bit and uses it some more until he can afford a new one. The carpenter who had the garage sale is technically helping the other carpenter (offering used but still functional goods below MSRP) and also technically stealing a primary sale because the other carpenter was able to get what he needed without buying from whoever made the lathe.

[Steven Lyle Jordan]

Originally Posted by Elfwreck

Downloading a copy of something where no version is likely to be offered for sale--like orphaned books with no legit e-version, or abandonware games--is hard to insist is "wrong," because it's not hurting anyone to spread the copies around, and the idea that we should abandon large swaths of our cultural history to reinforce Disney's claim on their products is a bit ridiculous.

In arguments of copyright infringement, it's not a matter of being "hurt," it's a matter of taking an action that could potentially deny a copyright owner a potential profit from their product. It's impossible to unilaterally decide who is "hurt" by downloading a copy of something that is not otherwise available. But it's easy to state that, if a product/service was someone's property by law, someone else should not profit from it.

I suspect the reason "fair use" is applied to law is that it allows for those who violate copyright to be exempt from automatic prosecution, as long as they don't try to make a profit on said product; but the moment you do try to make a profit, your status is automatically shifted to "criminal"... IOW, it's an interim step before becoming a criminal offense.

[Steven Lyle Jordan]

Originally Posted by teh603

Impossible to tell one way or the other on the internet. For all you know, I could be an AI being run in the back room of an Anonymous server farm. *shrug*

And they call me a writer. (You should talk, Mr/Ms/neutral Name and Androgynous Avatar.)

Originally Posted by teh603

No, but societies do have to hang together for mutual assistance to a greater or lesser degree. That aspect of it has only broken recently with the dawn of industrialization.

Not true. In fact, patent and copyright laws were drafted specifically to provide incentive to create products that would be mutually productive for society; without those laws, we would have less creativity and fewer products due to the lack of profit incentive, because industrialization makes it too easy to copy others' products/services and steal their potential profits.

Originally Posted by teh603

For example, a carpenter buys a new lathe...

I understand the analogy, but it's not germaine here; the discussion is about redistributing easily-duplicated products, not reselling used products; and as I said earlier, trying to draw comparisons to physical products is an example of the bad metaphors that have driven this decade-plus-long argument.

[Elfwreck]

Originally Posted by HansTWN

You mentioned fair use exceptions -- not illegal downloads. I fully support these.

There is no sharp definition of fair use. "Downloading without permission" was the topic. Illegal downloading is, of course, illegal (whether or not it is "theft"); the problem comes with trying to define legality by the location & activity of digital files rather than by the intent and activity of the people who are moving them around.

Originally Posted by Steven Lyle Jordan

Actually, most of those things are considered okay by legal precedent of fair use. The one real flag is "sharing with friends:" In that situation, the ebook is treated like the cable "service," and those who receive that service are expected to pay for it.

Cable service is intended to be social. It can be singular, but it's provided to a household, with the expectation that anyone in the physical vicinity will have access--*AND* that a person can record parts of it, and share those with others. Many people give their taped-from-TV collections to friends when they're no longer interested in those shows; I don't believe there's ever been a prosecution about this.

Pbooks are expected to be social. Many people loan them to family members, to friends, to co-workers; many people give them away or sell them when done.

Ebook publishers demand an entirely different legal and social arrangement. They're advertised like books but licensed like key-locked software. Publishers shouldn't be surprised when, after ad campaigns calling them "books! made out of electrons!" they're treated like either (1) books made out of paper or (2) entertainment packages made out of electrons, which the public has a lot more experience with than "software which only runs on licensed devices." (Except they want more control than that; some booksellers' terms claim you can't even loan the device to family members--that *any* loaning of their digital content is "copyright infringement" and illegal. This is, of course, false; I am unsurprised that so many people are comfortable violating copyright when stores & publishers are willing to demand rights they don't actually have.)

It's true that the cable metaphors don't line up exactly. As I said, ebooks are like a comparable combination of cable service and software, a unique product that demands unique rules. But cable metaphors are still the best place to start.

That may be. But publishers aren't lining up to agree that it's okay to share ebooks within a household, nor are bookstores arranging software to allow multiple purchases of the same book on the same account.

I've got a teenager with an ebook reader; she can't legally buy any ebooks because she has no credit cards & isn't eligible for most bookstores' TOS. (Not able to sign a contract in the US; not over 18.) According to most bookstores, I'm not allowed to buy books for her.

Until the licenses acknowledge that it's ridiculous to insist that they have a record-of-purchase from every reader, they're broken. Since publishers want to be able to insist on 1 purchse = 1 reader, they're not going to try to fix this; they're going to continue to look uncomfortable when it's brought up, agree *in person* that it's okay to loan ebooks within a family & okay to loan your device with books on it to a friend, but not amend the TOS to say that.

Ignorance of the law has never been an excuse.

In this specific case, the law requires *intent.* Lack of intent means this law has not been broken.

Copyright infringement is still copyright infringement, but it's not this law's type of felony theft if there was no intent to deprive anyone of value or use of the contents.

"Theft" is a crime of action; it can be defined by what physically happened. Grabbing someone else's suitcase at an airport, even accidentally, is theft. "Assault" is a crime of intent; it requires purpose. Falling off a ladder and landing on someone is not "assault."

This particular digital-theft law requires "intent to deprive." One doesn't have to be aware of this law, but if the action was done with the intent to help, this law wasn't broken.

[Steven Lyle Jordan]

Originally Posted by Elfwreck

Cable service is intended to be social. It can be singular, but it's provided to a household, with the expectation that anyone in the physical vicinity will have access--*AND* that a person can record parts of it, and share those with others. Many people give their taped-from-TV collections to friends when they're no longer interested in those shows; I don't believe there's ever been a prosecution about this.

There has, however, been prosecutions for taping a show, duplicating it many times, and distributing it for sale OR free of charge to others. This is more analogous to the ebook situation than sharing of one-off copies.

Originally Posted by Elfwreck

Pbooks are expected to be social. Many people loan them to family members, to friends, to co-workers; many people give them away or sell them when done.

It's the fact that they are not "copies," and that it is not easy to make copies, that is important.

Originally Posted by Elfwreck

Ebook publishers demand an entirely different legal and social arrangement. They're advertised like books but licensed like key-locked software. Publishers shouldn't be surprised when, after ad campaigns calling them "books! made out of electrons!" they're treated like either (1) books made out of paper or (2) entertainment packages made out of electrons, which the public has a lot more experience with than "software which only runs on licensed devices."...

That may be. But publishers aren't lining up to agree that it's okay to share ebooks within a household, nor are bookstores arranging software to allow multiple purchases of the same book on the same account.

Yes: Like the cable industry, the ebook industry has a lot of work in PR (and damage control) to get themselves and consumers on the same page about what they sell and what is okay to do with it.

Originally Posted by Elfwreck

Until the licenses acknowledge that it's ridiculous to insist that they have a record-of-purchase from every reader, they're broken.

Not necessarily. Sure, it's very different than the old physical product analogies... but, as viewed by software requirements, it's not unusual.

We must accept that we can't apply physical product analogies, laws and practices verbatim to ebooks. They require a new set of metaphors, because they are truly unique, and physical product metaphors are the wrong ones to use as a basis for new ones in this case. They are only similar to print books in the type of information access they provide; beyond that, we are comparing apples and radio waves.

[mr ploppy]

Originally Posted by HansTWN

So while the word theft is not exactly right (if you closely follow the definition), theft is appropriate in that it has a strong, negative meaning. Nobody wants to be called a thief. If everybody used the word theft, I am sure that a lot more casual downloaders would think twice -- and that would be a very good thing. And whatever word is being used to describe the act of illegally downloading copyrighted material, it must be a word that clearly implies wrongdoing.

I would argue that calling it "theft" has done a lot more harm than good. People just make fun of it on Youtube, and those end up being watched more often than the official message. Humour gets points across a lot better than po-faced preaching. And wildly exagerated claims are ripe for poking fun at.

[teh603]

Originally Posted by Steven Lyle Jordan

Not true. In fact, patent and copyright laws were drafted specifically to provide incentive to create products that would be mutually productive for society; without those laws, we would have less creativity and fewer products due to the lack of profit incentive, because industrialization makes it too easy to copy others' products/services and steal their potential profits.

There was creativity before copyright law, and it also hasn't stopped the worst abuses on either end; for example, Eli Whitney having all his inventions ripped off by other manufacturers, and Thomas Edison legally stealing patents from inventors like Tesla. I don't know if we'd be better off without it, but the system we've been using is so broken its unbelievable.

I understand the analogy, but it's not germaine here; the discussion is about redistributing easily-duplicated products, not reselling used products; and as I said earlier, trying to draw comparisons to physical products is an example of the bad metaphors that have driven this decade-plus-long argument.

I was referring to the example of societies mutually assisting one another and the arguable theft of a primary sale from the tool manufacturer. Or am I the only one who sees that stupid "We cut corners so you don't have to" flyleaf on so many high school textbooks that're accusing the secondary market of sales theft from the publisher?

Ultimately, the metaphor of "theft of sales" is the same, isn't it?