Misleading Metaphors That Drive The War On Online Sharing

[mr ploppy]

Originally Posted by Steven Lyle Jordan

To quote a certain police captain: "Just because you say it with conviction, doesn't make it so!" You don't know how many people pirate files, buy files, pirate only because they couldn't find a legit file, or buy legit because they couldn't find a pirate file. And "most are never read" is NOT the same as "none are ever read." You can't make an absolute statement out of suppositions and estimates.

You can make assumptions based on available data though. Most of the better known pirate sites will tell you how often something has been downloaded, Amazon give you sales rankings, and some writers give hard sales figures that you can compare with their rankings to get a rough idea of how well other titles are selling.

That they aren't read is simple logic. I read a lot, but I would struggle to read more than about 60 books a year. So when someone downloads 5,000 books one day, 2,000 the next, and so on, it's obvious that less than 0.001% of them get read.

The people who look for unauthorised books by title, you could make an assumption based on the number of people who request specific titles on pirate sites (rather than just "everything by Steven King or every zombie book ever written). Those, if they get them, will have a higher likelihood of being read. But those are the sort of people who would have just bought a second hand paperback anyway, so it's no big loss.

[teh603]

Originally Posted by Fbone

You're misapplying the phrase "personal, non-commercial."

Hard to say, seeing as there's no case law on it. I'd say she's right on the money, though. This is the United States of Ferengi.

This was originally about the language used to describe use your words of choice; “file sharing,” “theft,” “piracy,” or “copyright infringement.” It has since devolved into the usual arguments about the legality or morality of the act. So a few thoughts on some of the arguments that have appeared here, from my point of view. I will use “copyright infringement (CI) to not get caught up in the battle over language.

First what I consider the most specious argument in favor of CI, that is something like the “seller is charging so much more than [what I think] it is worth so people are justified in CI.” Ridiculous. I firmly believe that in a prosperous society like the US [for example] people have a right to genuine needs such as adequate food, shelter, medical care, and for youth education, being fulfilled even if unable to pay for these. Those are needs. No one needs a MP3 of the latest Lady Gaga song or an ebook of the most recent book in the A Song of Ice and Fire series. Don't have the money or don't want to spend the money that the copyright owner is asking, then do without it.

Then there is the “fair use” concept. A teacher distributing xerox copies of portions of a copyrighted book is fair use. A teacher (school district) purchasing a single copy of the ebook and then making multiple copies of the file to distribute to the class is just CI to save some money.

If one person in a family purchases a single copy of a paper book that person does not expect to be able to go back to the bookstore and receive additional copies for free to distribute to friends and family members. I don't understand why people think it becomes acceptable when the purchase is of an ebook. This without even getting into the idea of purchasing a single copy and putting the file up on a web site for an unlimited number of strangers to download for free.

Then there is the issue of what sort of damages are appropriate when a person is caught engaging in CI. Let me relate a true story from about 10 years ago. I was discussing with a friend the case of a woman he knew who had been defrauded by an auto repair shop, charged for work and parts never done. This friend thought the woman was a b___h because she was not satisfied with the auto shop's offer to refund to her the fraudulent charges but was suing for additional damages in civil court. My reply to the friend at that time was for the auto shop owner to only refund his ill gotten gains when he got caught and keep those ill gotten gains when he wasn't caught was hardly and inducement for him to stop the practice. Just the opposite, heads he comes out even and tails he wins. The concept of awarding punitive damages in addition to actual damages in order to actually discourage harmful action is nothing new to the case of CI.

[Steven Lyle Jordan]

Originally Posted by Hamlet53

The concept of awarding punitive damages in addition to actual damages in order to actually discourage harmful action is nothing new to the case of CI.

This is a key point of the discussion, I think. Ebook pirates are like speeders--they figure "everyone else is doing it, and the system is slack, so no one will catch me." When they do get caught, they protest because none of the other pirates are getting punished. No one expects to be that one in a million file-sharer who actually gets fingered and brought to court, so they do what they want.

Unless a scofflaw is likely to get caught, and punishment likely to be issued, the entire discussion is pointless.

[Pinecone]

Originally Posted by teh603

Nope. Trademarks have a "use it or lose it" law, unless that's been repealed- which I doubt, because otherwise Disney wouldn't be fighting to hard to keep Mickey Mouse.

Actually trademarks can be lost over generic use. Amazon should be fighting the generic use of the term kindle (small K) for any ereader.

Which is why many places, if you ask for a Coke, will tell you that they serve Pepsi. Or Xerox people always say they will copy something, not that they will xerox it.

[Steven Lyle Jordan]

Originally Posted by mr ploppy

You can make assumptions based on available data though. Most of the better known pirate sites will tell you how often something has been downloaded, Amazon give you sales rankings, and some writers give hard sales figures that you can compare with their rankings to get a rough idea of how well other titles are selling.

That they aren't read is simple logic. I read a lot, but I would struggle to read more than about 60 books a year. So when someone downloads 5,000 books one day, 2,000 the next, and so on, it's obvious that less than 0.001% of them get read.

The people who look for unauthorised books by title, you could make an assumption based on the number of people who request specific titles on pirate sites (rather than just "everything by Steven King or every zombie book ever written). Those, if they get them, will have a higher likelihood of being read. But those are the sort of people who would have just bought a second hand paperback anyway, so it's no big loss.

The anecdotal pirate who downloads thousands of books and reads none (the hoarding pirate) is not the typical pirate... therein lies the fallacy. The typical pirate downloads what titles they want to read, or if they download a bulk of titles, it is to get the few titles they actually want to read. These are the same people who will buy a title if it is not readily available on pirate sites, but is available conveniently or reasonably priced from legit sites.

The hoarding pirate is still indirectly connected to one-off downloaders, in that the hoarding pirate often makes their collection of downloads available to others who seek a book ("You're looking for Worldfarm One? I've got that one... here you go, no need to buy it."). These file distributions are often person-to-person, so they won't show up on anyone's server records.

And finally, any loss is a loss. Trying to reason it down to a low percentage doesn't alter the fact that an author is losing a sale, and that is significant even if it's just one.

[Pinecone]

Originally Posted by Andrew H.

1. So what? Surely the argument isn't that stealing copyrighted music is theft, but stealing copyrighted books is not?

The way the law works, yes.

They need to amend the statute to make books be treated the same.

[Greg Anos]

Originally Posted by Steven Lyle Jordan

The anecdotal pirate who downloads thousands of books and reads none (the hoarding pirate) is not the typical pirate... therein lies the fallacy. The typical pirate downloads what titles they want to read, or if they download a bulk of titles, it is to get the few titles they actually want to read. These are the same people who will buy a title if it is not readily available on pirate sites, but is available conveniently or reasonably priced from legit sites.

The hoarding pirate is still indirectly connected to one-off downloaders, in that the hoarding pirate often makes their collection of downloads available to others who seek a book ("You're looking for Worldfarm One? I've got that one... here you go, no need to buy it."). These file distributions are often person-to-person, so they won't show up on anyone's server records.

And finally, any loss is a loss. Trying to reason it down to a low percentage doesn't alter the fact that an author is losing a sale, and that is significant even if it's just one.

Even if it acts as advertising? The biggest problem today for many creative artists is get noticed. Why do you think there has been Payloa scandals for 60 years in commercial radio? Companies paying to get their artists noticed by the public...

[emellaich]

It seems that I see discussions about fair use that define it differently than I do. Here is what I get from the copyright office in the US (http://www.copyright.gov/fls/fl102.html).

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

As you can see, it's actually limited in its applicability. There are no clear lines as to when something is 'fair use', but the clearest case would be for nonprofit doing education/research/criticism and only copying a few lines from a book.

P.s. it's not really germane to the discussion, but "The nature of the copyrighted work" refers to whether it's generally accepted knowledge (12 inches to a foot) or specific to the work (Luke and Leia are siblings).

[Freeshadow]

Originally Posted by Billi

Are you sure? I don't know much about US law but I would be surprised if it differs very much from German law in this case. In my opinion, your scenario has nothing to do with copyright but is covered by these parts of the law that deal with situations where parents act for their teenage children. And of course you can buy anything for/in the name of your daughter and give it to her, even ebooks..

thats the trouble with case law Billi:
the rules which we just look up in in leges i.e. Gesetzen may in a specific case not yet exist, in a case law based country since given problem wasn't yet brought to judical attention so there is no previous decision on it to extract a rule from.

This is IMO the reason why a lot of EULAS are the way they are:

Big companies can say: "We'll keep it up as long as we loose in court about it and we have more money than an individual to survive a legal battle."
this thay say and present you an EULA which consists of 80% of FUD.

[speakingtohe]

When you steal something from someone, they don't have it anymore. When you copy someone else's information, they still have it.

I think it is like theft of services. When you use someone's services and don't pay this is generally considered theft. In some cases it is a crime punishable by imprisonment.

Helen

[teh603]

Originally Posted by Ralph Sir Edward

Even if it acts as advertising? The biggest problem today for many creative artists is get noticed. Why do you think there has been Payloa scandals for 60 years in commercial radio? Companies paying to get their artists noticed by the public...

This was the whole focus of a DRM thread a while back, IIRC.

[Greg Anos]

Originally Posted by teh603

This was the whole focus of a DRM thread a while back, IIRC.

Merely a reminder that "stealing" is not as cut and dried as some believe.

The metaphor issues are dependent upon the values being described. It's not just economic, it's a control issue. I'm the creator and I control my creations. Unfortunately, it doesn't work that way.

For example, if it were only an economic issue, one could set up a government (or private) registry of works in existence. You could buy a single user license. That license could be created for any book or short story, at a fixed rate, and they you could create your own, get it from a publisher or reseller, or download it off any "pirate" site. Show me a license, I'll give you a copy free. You've already paid for it.

No worry about the Google Monster, easier law enforcement. But poof, there goes the control of creators and their intermediaries. And that's not acceptable.

Let me give an example. I want to buy an e-book copy of something really obscure. Say, the Dig Allen pulp book set. The odds of it ever being released as an e-book is somewhere between slim and none (and we shot Slim). I go to the registry, enter the books (there are 6 of them) into the registry, pay the rate for books that length, and I get a number. I can then scan or search the world for a existing copy (fat chance). Perfectly legal. If the copyright police want to search me for illegal downloads, go right ahead, I've got my registry number, I'm legal.

This is similar to the insurance industry. When heirs squabble over an estate, an insurance company pay the money to the court for later settlement. It's called Interpleader. Pay the money to registry and let the creator and the former (or current) intermediaries fight out the split.

But then they'd lose control. They couldn't set pricing, they couldn't control access (out-of-print), there'd be little scope for cheating, and finally, you couldn't make people buy the same I.P. over and over due to DRM. Totally unacceptable.

That's why I don't see any good metaphor for discussing copyright. It's about maintaining control in a world where technology has rendered control unenforceable. With no answer to that, there's no way to create a metaphor...

The license metaphor (and registry) does allow I.P to mimic real property. The license means something, it can be bought or sold, inherited, pledged as collateral, ect. It's also unique, as it is registered. (but somebody knows who I am!!!) Shrug...Welcome to the world of today...

[sabredog]

It appears this thread, like the others is destined to go around and around in circles.

The essential truth is that the music industry, entertainment industry and publishers also need to move forward and make significant changes to the way they market and distribute their product in the 21st century. Maintaining an outdated business practice that is failing and then falsifying reports on losses, paying off politicians and keeping legions of litigation lawyers employed is not going to work.

Disney's vault system of artificially reducing distribution is a prime example of this way of thinking. Little wonder frustrated parents download Disney movies for their kids to watch if the DVD's are not available for purchase except when they come out of the vaults every 5-7 years or so.

There has been little impact on reducing file sharing and piracy and it would appear that will not change significantly into the future.

To be honest, I do not think the mainstream distribution companies will change and eventually will be consigned to the extinction list of history where the Dodo figures prominently.

It takes two to tango, sadly the other party (if they could dance) are not interested or even care.....

[murraypaul]

Originally Posted by Fbone

You're misapplying the phrase "personal, non-commercial."

What other interpretation would give sense to the use of the word personal?