A Statement on the fallacies of Digital Piracy: Where we stand and how we perceive it.
DISCLAIMER: This blog entry is not intended to be an argument in favor or against a position. It is intended to clarify and elaborate my views on a very complex problem (simple problem, made complex by the legislators and lobbyists). I use this blog entry to refer people to it, so I don’t have to retell my position and re-issue my arguments over and over.
Anyone is welcome to repost and quote paragraphs of this blog entry without requesting permission. I would appreciate quoting the source and referring your audience to the blog.
This blog entry is aimed at stating the ComicWatcher’s stance on this issue, and explain why we take this stance. The explanation should demonstrate that we have considered many sides of the argument and we have not arrived at our consensus lightly.
THE CONCEPT OF PIRACY AND PUBLIC DOMAIN.
The ComicWatcher defines “Piracy” as “The action that takes place when someone appropriating someone else’s intellectual property for the sake of profiting from it, and in the process, denying the creator of the opportunity of profiting from it.”
Re-read the loaded phrase above again carefully and think about the implications.
What is now commonly referred to as “Piracy” in the US is a misnomer used by some monopolies to perpetuate their flawed business model and purport legitimacy to their immoral and/or unethical business practices.
Piracy, and the piracy that we are against (and everyone should be against), involves Company A producing a product (be it song, comic, movie) and then another company (Company B) makes, distributes and sales unauthorized copies of that product. Company B doesn’t have to be a incorporated entity. It could be a member of the local mafia running a knock-off factory from the basement of his grandma’s house. THE MAIN MOTIF HERE IS PROFIT.
A few things take place here:
1) An unauthorized product gets reproduced, and floods the market. That denies the original product and creator to get its fair market share from selling said product in that market.
2) There is an illegitimate manufacturer who “Pirates” the product and creates a tangible product that may disrupt the distribution chain, and arrives at the consumers hands posing as tangible original product.
3) By manufacturing a product outside the channels the creator intended, you are risking reputation of the creator, whose name is associated with the product, and you are denied control of the creation you conceived. Those are your rights as a creator.
Items copied and distributed around the internet for free do not fall in this category, no matter how much politicians and lobbying groups would love them to fall into.
When someone appropriates an idea or a product and copies or distributes them while charging for it, then it does fall into the category of loss of revenue.
Why the distinction of distribution with the intent of profit?
Well, the difference affects what is called Public Domain.
There are a bunch of cute graphics that explain the principle very well.
Public Domain is you and I and uncle Tom, and everyone who has been born onto this earth. Public Domain is not limited to a country. It is human society as a whole.
All companies rely on the Public Domain to sell their wares and most companies rely on the public to make profits. Even companies that sell directly to other companies end up relying to some degree on the Public Domain, because their customer’s financial well-being relies ultimately on the Public Domain.
But when it pertains to intellectual property (IP) we have to understand that the right of a single individual or company to make a profit takes second place to humanity as a whole benefiting from that IP.
You may disagree with this. You may think that profits and ownership of IP trumps all. You are entitled to your opinion. I am just following the logic of the maximum benefit for the maximum of individuals.
I do agree that a company has a right to make a profit out of its product. But I also recognize and believe that once I bought said product and rendered some profits to the before-mentioned company, I have a right to treat that product as my property, and resell it, trade it, or lend it if I so want.
Wether you agree with the two previous statements or not, the fact is the product slowly becomes part of the Public Domain, by affecting our lives and changing how we live. The rate of how quick or slow becomes part of the public domain is something up for debate (and should be) but the inevitable consequence should be that the product becomes part of the capital of humanity as a whole.
Such is the case with the works of Dickens, Shakespeare, the Mona Lisa, and the Pieta.
BUT WHAT ABOUT COPYRIGHT LAW?
Laws are not good nor bad.
They are artificial constrains we (as a society) create in order to maintain order in society.
Sometimes we try to give legitimazy to our laws by stating that the laws reflect justice. But that is not the case in recent decades, and justice has become a very subjective term. In the US it was a Law until the 1960′s in most states to practice segregation. I can’t think that as being just, but it had laws protecting that practice.
In Germany in the 1930′s Laws were passed to aid in the prosecution of poeple based on their race and religions. IT WAS A LAW, but I think very few will deem them representations justice. A similar thing is happening nowadays with Copyright Laws. They are being passed only to protect a couple of industries, even if those laws curtail notions of Public Domain and Fair Use.
Copyright Law came into being to regulate the rate into which any given creation would join the Public Domain, and to provide the creator a window of opportunity into which, by granting the creator special TEMPORARY benefits, he/she could profit from the creation he/she come up with.
Copyright Law came into being not to insure that someone would create a song, and then get residual income from it as if it was a life-long rent, but TO ENSURE THAT WITHIN AN ADECUATE AMOUNT OF TIME, it would pass onto the Public Domain.
That was the original intent of the law.
If you don’t believe me, look it up.
If you don’t agree, go suck a lemon. This is not up for debate. It is plain History. Verifiable facts.
Now, I am all in favor of companies protecting their IP (intellectual Property), as long as they come up with viable business models that do not infringe on basic human freedoms and they respect the concept of Fair Use and Public Domain.
By the way, I’ve mentioned Fair Use, and you may not know what that is.
Fair Use is a very American concept ( I would say mostly American, and I wish most countries in the world would adopt) by which the special privileges of Copyright Law can be bypassed, as long as it is for use in commentary, criticism, news reporting, research, teaching, library archiving or scholarship.
OK. So that means that an artist can make a movie, but if you are writing an article about the effect of Cancer, you may use a clip of that movie for your article, because it falls on the grounds of research and teaching.
But since the beginning of the 20th century companies involved in entertainment, spearheaded by the Disney Company, have been lobbying (euphemism for BUYING) politicians to extend the length of the term of those said benefits, and later, with the Digital Millennium Copyright Act the US Congress legitimized their claims.
But they are not fair claims and these have not been fair laws, and the main victim has been The Public Domain, and by extension all of us.
You may argue ad nauseam any point you want to defend these companies. The point that trumps every argument is that THERE ARE NO COMPELLING REASONS other than safeguarding the profits these companies make, FOR INCREASING THE AMOUNT OF TIME THE PEOPLE HAVE TO WAIT BEFORE AN IP JOINS THE PUBLIC DOMAIN.
Every half-brained (and some of the full-brained too)politician wants to get into the pocket of the entertainment industry by sponsoring draconian measures of how to deal with what they have termed Piracy.
To be fair, NOT ALL politicians want to back up Draconian control policies on the digital media just because their campaign donors tell them to… some actually believe in what they are proposing.
And there are even a few (not many, unfortunately) that oppose these measures, and want the Public Domain to trump above all interests, as it is supposed to.
RECAPING: Are we against companies making profits? No. We want creator, inventors and artists to make money, and we want their works to join the public domain in a REASONABLE amount of time. We think also that those reasonable spans of times should have contracted and not expanded, because technology has created better business opportunities in the last 100 years than there ever were when Copyright law was conceived.
LET’S COMPLICATE THE ALREADY COMPLICATED TOPIC EVEN FURTHER
Enter the internet and the PC.
Now, in our homes we have a device that can do whatever we learn to program it to do. You want to create programs? Learn programming and go at it! You want to mix music? Learn to use the software and knock yourself out!
We now could do videos at home, we could exchange letters with friends, books, novels, we could print our own manuscripts and record and mix our own music.
At the onset of the PC (Personal Computer), in the 1980’s you could do all these things, only if you bothered on learning how and the learning curve was usually steep.
At the onset of the Personal Computer era each person was responsible for learning everything there was to learn in order to keep the PC humming. The analogy was like if you bought your own car and you also had to learn to became your own mechanic.
But the market introduced an answer to that quantity of users who didn’t want to become PC experts in order to just be productive with the device.
It was called a Mac!
These amazing consumer oriented computing devices were well constructed and had a great operating system that required a small learning curve, and seldom broke down!
And after 1995 The Internet made influxes in our homes. What we consider The Internet was brought at one time into our homes thanks to phone lines, modems and companies like AOL or Compuserve, that gave you a portal for your web browsing and your e-mail.
That was (and still is) what the majority of the consumers wanted out of the Internet. The guys (and gals) who had invested time learning all they could about PC’s usually wouldn’t settle for these services and would instead would find an Internet Service Provider (ISP) who would just give them access to the internet and they would ran their own tools.
The corporate world also introduced a response to the Wild World of the Internet: They created Intranets, (Internal Private Networks), and set up buffer zones (DMZ’s) and then loaded layers of security (Firewalls, Spam Filters, Content Filters, etc) and created pretty secured environments for their companies.
Enough PC history and now back to the article: Somewhere in the late 1990’s the users of the internet discovered they could exchange large and small files using different protocols. The practice came to be known as File Sharing.
Here comes the conflict: Immediately the companies that were making a killing with monopolistic business models, or with old and questionable business practices (The music industry first, and then the movie industry) started clamoring against the practice and got the courts to erect artificially high protections so they could continue living off their OLD business models.
These industries embraces the term PIRACY, which until then had been used and designated to call the high end, luxury items that were being replicated and sold off cheaper, for example, Gucci handbags, or Rolex Watches. HERE the term made sense. Some manufacturer were hijacking a brand, a product and a design, and were making phisical copies, and selling them as ORIGINALS. The original creator was having their name and reputation placed in danger, and were loosing business oportunities in a market they were working hard to compete in.
Well, the entertainment industries took this concept and applied it to their products and started a disinformation campaign trying to make the public and the lawmakers believe that these a user sharing a song with another user USING HIS OWN HARDWARE AND HIS OWN BANDWIDTH, was the same as some fly-by-night company making lesser quality Handbags and selling them on the corner. All in the name of perpetuating their obsolete business models.
Having the money accumulated after a century of massive profit making behind them, they financed lobbying organizations that put pressure on the politicians. Disney did this with their extension of the Copyright Act, first in 1976, and then again in 1998.
The politicians (if the political system worked as designed) should’ve taken into consideration the welfare of the Public Domain first, and the interest of a corporation second, instead of, as they did in fact, vice versa.
Other attempts were made form different fronts in order to create a hostile environment to users File-Sharing. It happened with the DMCA (Digital Millennium Copyright Act) of 1998. Clearly drafted to continue protecting the business models of the large recording industries it completely ignored the right of the public to put works on the Public Domain. The largest problem you may encounter with it, is that it’s language criminalized all activity pertaining circumventing protection, even though some of that activity may occur in settings that SHOULD not criminalized, such as in my home, with my equipment and when I do it NOT FOR PROFIT.
A PC is a Personal Computing device. These devices are not devices subsidized by government grants and there is no other single standard pertaining PC’s other than what the IEEE suggests. Consequently there is no legitimate reason nor right to legislate what goes on in someone’s PC’s.
If I buy a digital device, (PC) and then use it to make copies of movies, music, comics, books, or porn, that is still my prerogative, as long as I don’t commercialize it, sell it, or infringe in their business model in any shape or form.
Because when it comes to what now is considered “Piracy” through the internet and the Personal Computer (PC) we are criminalizing private citizens who are buying their own equipment and using it for any private purpose they wish.
Making a copy of any IP for personal use IS NOT A CRIME.
MAKING IT A CRIME IS A CRIME.
But that is exactly what happened when Roger Clinton, the brother of President Bill Clinton convinced his brother to sign the DMCA (Digital Millennium Copyright Act).
Our politicians seem more concerned with listening to the recording industry and the movie industry on their concerns about extending the years of copyright law protection, and prosecuting private citizens for what they do WITH THEIR EQUIPMENT IN THE PRIVACY OF THEIR HOMES, rather than making sure these companies contribute to the Public Domain in a timely manner, something that would benefit the most people.
When I discuss these points with defenders of the existing models, they call me “Supporter of pirates” or even weird thing like “Socialist” or “Communist”.
I believe that for someone to be considered a pirate the accuser has to demonstrate “REAL LOST OF REVENUE” and “REAL THEFT” .
This addresses the case of someone having written a book, say, 5 years ago. The book is out of print. No one can find a copy. But the publisher doesn’t deem it profitable to get a second print out.
The author right now is not making any profit from the book, since the publisher decided not to print any more.
But the Public is being denied the right to have access to that work. That eventuality has to be addressed, because there is no reason to forego the greater good of making the work available to the public for the eventuality that “someone” may want to publish later on, or eventually do something profitable with it.
Now, in the case of software, I completely understand that is not viable for a company to produce software and then let users copy it without paying for it. But then, it should be left up to the company to find ways of creating a VIABLE business model, not penalizing the user’s best interests in order to support companies broken business models.
People seem to think that Capitalism implies letting companies do whatever they want. That is more like a Plutocracy. In a good capitalistic system where the market sets the tone and prices WITHOUT GOVERNMENT INTERVENTION, the software companies that can’t come up with a viable business model would sink and the business would close.
But as it stands, the entertainment industry and the software industry are the ones behaving like wards of the state, THEY ARE THE SOCIALISTS, using government to protect their interests and coercing congress to set up laws that favor their flawed business models.
IT IS CALLED PROTECTIONISM and it is not how CAPITALISM is supposed to work.
I would like to see a society find a balanced middle ground. For starters, I would rescind al the extensions we have given to IP copyrights, and set the timeframe when a work goes into public domain to something like 10 years. Not 30 and certainly not 50.
SOME FALLACIES THAT PERPETUATE UNJUST LAWS
ONE ARGUMENT: I hear the argument that by shortening the period and bringing works into public domain quickly, you are taking away the incentive to be creative.
Well, I counter-argue that statement by stating that by extending the copyright life of any work to beyond the half-life of the life expectancy of any human, you are promoting people to be complacent and NOT innovate.
DID you Make 1 popular song a long time ago? Well! Lay back and live off it for the rest of your natural life, without creating anything else, because copyright law now allows you to have a monopolistic control to it for more than 50 years!!!!. What kind of business lets you do that? Is that how society should work? Is that competitive? Come up with ONE thing and be set for life? Doesn’t this go against all the arguments the conservative political pundits make, about incentivizing workers, and giving incentive also to the job creators?
So let artists and companies commercialize in their innovative success for a finite amount of time, say 5, maybe 10 years and then bring the work onto the public domain, and thus let the creator or company come up with something else that will provide income for the next 5 or 10 years.
I also want to make a distinction between cultural creations and inventions.
Cultural creations CAN make a profit, but they don’t have to make profit in order to exist and proliferate. Cultural creations SOMETIMES are a byproduct of commerce, but most of the time (do the numbers, quantify it, to make sure) they are created for culture’s sake.
DID YOU KNOW THAT THE SONG HAPPY BIRTHDAY TO YOU is copyrighted?
And it is currently owned by Time Warner?
And you can be sued for singing it in public, and lots of documentaries and other means of information have run into trouble because of their use of the song?
Inventions are usually applied to commerce and progress and thus profit has more often been tied to commercial applications and industry. Inventions can SOMETIMES be a byproduct of Cultural Creations, but empirically speaking the majority of them are done for commercial reasons, for profit.
So, when it comes to the time table that protect intellectual property, we should make two distinctive groups with different timeframes:A cultural creation will join the public domain in 5 years, while an invention will join the public domain in 10, for example.
What happens after the creation joins the public domain?
Currently, when a work joins the public domain, any publisher can launch and bring it to the public. That’s how Barnes and Noble,( For example) is able to release a collection of hardcover with classics (Little Women, Dr. Jeckyl and Mr. Hyde, Moby Dick, etc) at such affordable prices. Because it only has to cover printing and distribution costs.
I would like to make a clause to this: When a work enters the public domain, AND THE ARTIST IS STILL ALIVE, the publishing entity would still have to give them a nominal amount for the work. The amount should be something standard and small, just so we won’t reward individuals who are non-productivity, but still have the artist/creator share in the profiting that is taking place on account of his/her work.
I want artists to thrive. I want artists and content creators to continue creating, and I want them to rip as much fruit of their labors as possible.
I don’t want artists to HAVE to rely on distribution houses, just because the business was setup that way long time ago, built upon a house of errors, misjudgments and corruption, and now it is deemed that is too late to change.
There is enough information and articles on the internet describing the business models of the music and movie industry to keep you reading for a long time, and let you quickly get the impression that these industries were based on monopolistic practices that usually were not very artists-friendly. The tales of musicians, writers, and other creative types getting screwed by the industries they tried to work for are countless, starting from Jerry Siegel and Joe Schuster (Superman Creator’s), a long list of Jazz and Blues players, ending in script writers, composers and such on the movie industry.
Middle-men and distribution companies have to offer something more than a quasi-monopolistic grip on the industry they dominate. For example, in comics distributions it is Diamond, or good luck, chuck!
With music it used to be one of the three large labels, or you are really doomed to be touring in buses, paying for your own gas, and playing at roadhouses in the ass of the world till you get enough exposure to command your own deals.
This has little to do with the creation process, and a lot to do with monopolistic practices that affect the business case, and finally defines the industry.
Again, this is government putting the interest of the companies in front of the interest of the American people. Instead of creating good legislation that would protect CREATORS, they focus on passing legislation that protect those large industries.
I REPEAT, (and I can not emphasize this enough): I want artists and inventors to make money off their work.
I do not want nor find it acceptable that laws are passed to outlaw the practices of private citizens in the privacy of their homes, with their own means, without intention of profiteering, to preserve the well being of corporate entities and their obsolete business models.
Companies have to find other ways of monetizing on the content they decide to represent. Artists and inventors who want to make profits not only have to come up with good ideas (that is the creative part) but they also have to commercialize them in viable business models.
I do condemn groups of people selling illegally the IP of others for profit.
But the right of me to make a copy of a song, and give it to a friend, by any private/personal means that I see fit, shouldn’t be interfered by government law .
Also, the government shouldn’t regulate, interfere or intervene in ANY dealings occurring on the internet.
Government and law enforcement should use what happens on the Internet and prosecute people commiting crimes. But The Internet SHOULD NOT BE REGULATED.
The internet was created as a set of protocols for communication purposes. NO ONE ASKS YOU TO JOIN THE INTERNET. You don’t want to send e-mail? Mail a letter! It is government created and regulated and safer. You don’t want to find porn when you are researching a topic. WALK YOUR ASS TO LIBRARY AND OPEN A BOOK. Libraries are government subsidized, (In their majority) and have regulations and safeguards.
The internet, as it was designed, was a method of exchanging information. It can be exchanged anonymously, and it doesn’t facilitate regulation or monitoring. THAT’S THE WAY THE INTERNET SHOULD REMAIN.
If someone wants to publish hate speech, it should be allowed. If someone wants to exchange recipes for cooking meth at home, they should be allowed. If someone wants to use it for a crime, they should be allowed. WHY?
Because this form of Internet was designed as a set of loose protocols designed to exchange information without passing judgment on said information.
I do believe that if someone commits a crime (cooking meth, or acts of pedophilia) thanks to the internet, they should be prosecuted and sentenced based on the crimes they committed. But not because they exchange information on the internet to commits those actions.
And before you ask me “But ComicWatcher! Then you are OK with terrorists exchanging information on dirty bombs to attack innocent Americans?”
I will respond: “I am OK with us prosecuting and stopping the terrorist from committing any acts of terror. I want the world to stop committing acts of terror. But I don’t want the Internet censored or manipulated with the premise that we are avoiding terrorism.”
And as a proof of what I am saying I present to you the TSA. The agency in the ports and airports in charge of making sure you don’t bring any dangerous materials on board, and all they have managed is their almost 10 years of existence is to allow one underwear bomber and one shoe bomber onto planes, while patting down children and old ladies, and annoying everyone else’s existence to no end.
The Internet is a tool that reveals a symptom. The internet is not the problem. The people misusing the internet is the problem. The moment you allow governments to regulate the internet you have given up one of the best tools available to exchange information. And no promise of security is worth the freedoms we are foregoing.
“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
Benjamin Franklin, Historical Review of Pennsylvania, 1759
The same applies to file-sharing and copyright protection. The right of the individual to do what they want, with the equipment they own legally, trumps the interest of any mickeymouse corporation.
Some businesses and industries have built their profit models using flawed models and misusing legal precedent.
We need to reestablish the trumping power of Public Domain, and let the industries build their models AROUND Public Domain.
We can’t curtail neither the length of the copyright protections, (Should reset them back to something like 5 years) nor the power of Personal Fair Use or Public Domain
The Internet is not a tool for everyone, since it requires knowledge and training on the technologies it uses.
The Internet and the File Sharing Technologies it implies should never be touched, never be interfered with, never regulated, because it is our only safeguard to insure that that the common citizen can exchange information freely, now that the printed and televised media has been bought by private corporate interests, and can’t be expected to impartially report on the status quo nor be a tool for criticism and improvement.
The industries that are clamoring for more copyright protection (Movie, Music) have to find way of monetize on digital offerings, but know that the Internet and exchanges that take place on it via private citizens exchanging files is off limits. It occurs within their houses, it happens with equipment they purchased, and with bandwidth they are paying for. It is only those industries fault that they don’t know how to monetize on the new opportunities presented.
Piracy only occurs with the demonstrable loss of profit/revenue. A company CAN NOT supposes that an item copied is an item they lost on selling. The burden of proof is on the company making the claim, not the defendant.
How does this affect the comic industry?
I am proud to say that the comic book industry seem to have taken the high and smart ground, adopting a wait and see attitude, and embracing digital distribution when possible. I’ve seen lots and lots of comics being shared via different sources. And I had many comics passed onto me in digital form, and all it has done to us is incresed our desired to purchase the real deal. Most of the comic collectors that I know of, have use digital copies of comics (that some may deem illegal copies) as screening process to be able to ascertain better what series they want to pursue and what comics they want to buy.
I would like to say that the comic industry has understood that they had to improve the quality of their producst and diversify, instead of fighting the trend, like the movie and music industry have been doing.
I would like to, albeit I am not sure that’s the reasons behind their attitudes.
So far the industry has adopted many services like Comixology for digital distribution, and is experimenting with digital same day releases, and that tells me that the industry believes on its own strengths and correcting its own weaknesses, without feeling the need to treat their customers like criminals.
Publishers are sending reviewers digital copies of their comics; lots of groups have been formed of fans sharing scanned copies of a comic, and all it serves is to steer the consumers towards the offering that would suit them bests and to avoid moments of anger and disappointment. It also lets the comic industry know it should be more diligent avoiding the fiasco of the 1990′s when they published CRAP for the sake of a quick buck, and that almost sunk the industry.
As always all comments are welcome.