sharing denies nothing

Tom notes some attribution lost in space beginning with this, which came from this, which came from this. Amid this comical exchange on copyright, a questionable argument is taken for granted (in the comments on Jukes’ entry) by Doug Johnson who says:

When I asked [my son] if he didn’t feel it was wrong to deprive someone of his/her livelihood by denying them payment for their creative property [...]

This asking (“Don’t you feel it wrong to have deprived others by denying payment?”) depends upon the assumption that copying published information denies payment. Most certainly, file sharing does not necessarily include payment (hence “sharing”), but that’s very different than an active “denying” of payment. While the difference is subtle, it is significant and skews any copyright argument if not acknowledged.

13 Responses to “sharing denies nothing”

  1. Eric Hoefler Says:

    Hi Peter,

    I’m still working my way through this issue, so forgive me if some of this is obvious or obviously wrong.

    I can’t seem to get past the idea that: if, 1) in the past, distribution of a copy of a work almost always carried with it some compensation for that distribution (whether to the artist or publisher, etc.) and now, 2) distribution does not necessarily carry any compensation with it even though distributions are almost always copies then, 3) it’s reasonable for those who used to profit from the distribution of copies to see the kind of distribution technology allows as a “denial.” Unless we concede that and try to find a common ground, both sides will just keep yelling at each other, I think.

    I also think, in the fight for a free and public domain, we have to be very careful not to replace the old system with one that will not, in the LONG TERM, encourage a sustainable creative class. I’m sure that “open and free” will create a vibrant amateur creative class, but I’m not sure it will create a professional one unless “open and free” applies only to transformative works and not to simply copy-and-distribute. And I do think that’s a problem.

    Some types of creative work seem very improbable if not impossible without the opportunity of a professional creative class, whereby those individuals can spend the bulk of their time and energy on their creations (because they’re getting paid to do so … paid substantially enough to not have to supplement that income.)

    I’m in no way suggesting that the current system works (and it’s definitely not fair or balanced). But what you’re talking about seems to be about the freedom to copy, which even Lessig doesn’t support. His concern is for the freedom to build upon/transform the work of others. If I’m reading him right, he’s not in support of free and open copying and distribution (for the reasons I’m suggesting above, and the reason Jefferson and the others created copyright initially: to allow “inventors” the opportunity to profit from their inventions and therefore focus primarily on them.)

    This is also why I think we need a “professional” media with professional journalists … because amateurs don’t have the time to do the job as well as a professional, who trained for and devotes the bulk of his/her time to that purpose. (Again, not executed perfectly, but better than the alternative.)

    Am I making any sense? Am I still stuck in some kind of quagmire? Also, don’t feel like I’m expecting you to answer all this … I’m using your thoughts as an opportunity for my own, not demanding an explanation from you. ;)

    Thanks for your post.

  2. gnuosphere Says:

    I can’t seem to get past the idea that: if, 1) in the past, distribution of a copy of a work almost always carried with it some compensation for that distribution (whether to the artist or publisher, etc.)

    Yes, this is true due to the conditions (tangible only) at that time. We live in radically different circumstances given the development of digital technology and networking.

    and now, 2) distribution does not necessarily carry any compensation with it even though distributions are almost always copies then,

    Yes. “Does not necessarily” is the fact – though perhaps “payment” would be a better choice of words than “compensation”.

    3) it’s reasonable for those who used to profit from the distribution of copies to see the kind of distribution technology allows as a “denial.”

    Well that depends upon what one means by denial. But given the context provided (i.e. “deprived”), what is meant is clear. No author can be deprived by file-sharing. Sure, it may be possible to argue that sometimes, an author can be deprived when unauthorized commercial use occurs. But file-sharing?

    I also think, in the fight for a free and public domain,

    That’s redundant. Are you referring to the fight to keep copyright limited by time (so far so good) and set at a more reasonable bargain (so far so bad)? Something beginning more along the lines of CC’s Founder’s Copyright?

    I’m sure that “open and free” will create a vibrant amateur creative class, but I’m not sure it will create a professional one unless “open and free” applies only to transformative works and not to simply copy-and-distribute. And I do think that’s a problem.

    I don’t know what this means. What does “open and free” mean to you? Is the argument that if the public is authorized to share any legally obtained copy, then artists will not make any money (even indirectly) through reserving some rights? How “free” is free to you? How “open” is open?

    Some types of creative work seem very improbable if not impossible without the opportunity of a professional creative class,

    You imply an argument that if file-sharing any copyrighted work was legal then those artists who make a living through their art will no longer be able to do so. Do you believe this to be true?

    I’m in no way suggesting that the current system works (and it’s definitely not fair or balanced).

    Well then which way do you feel it should shift? Do you feel it favors too heavily the public or those given the right to reserve all rights?

    But what you’re talking about seems to be about the freedom to copy, which even Lessig doesn’t support.

    What do you mean by “copy”? I’m sure you meant something more. Have you asked Lessig a specific question? I would like to know. My understanding is that he is generally against disobedience of copyright law. I think he would say it is best to work for change in this area by following laws. But I could be wrong…I’ve never asked him that question.

    His concern is for the freedom to build upon/transform the work of others.

    This is a concern of his, yes. And rightly so.

    If I’m reading him right, he’s not in support of free and open copying and distribution (for the reasons I’m suggesting above, and the reason Jefferson and the others created copyright initially: to allow “inventors” the opportunity to profit from their inventions and therefore focus primarily on them.)

    I think it may be best to ask him and define what you mean by “free and open”. BTW, the reason why the foundation for copyright law exists in the US constitution is to promote the progress of science and useful arts. The exclusive Right (opportunity to profit), is the means to the end, not the purpose. This is an important distinction if one wishes to understand what the framers intended.

    This is also why I think we need a “professional” media with professional journalists … because amateurs don’t have the time to do the job as well as a professional, who trained for and devotes the bulk of his/her time to that purpose.

    If I’m reading you correctly, you are simply saying that artists who make a living wage will make better work than artists who don’t. While that’s not absolutely true for every case I agree that in general we would find that the best artists would make a living wage. (Who knows, for some artists making way more than a living wage, that might actually decrease the quality of their work!) Regardless, the opposition to sharing is based upon the belief that the noncommercial file-sharing of all copyrighted works would lead to no artists being able to garner a living wage. If this is the argument, I’m highly skeptical of it.

  3. Eric Hoefler Says:

    Hi Peter,

    Thanks for the thoughtful reply!

    By “free and open” I just mean the idea that anyone can legally copy and distribute anything, without restriction. (This seems to be the attitude/desire behind a large portion of the comments I’ve seen around the web when this issue comes up … but I could be misreading them.)

    And I suppose I’m skeptical that THAT kind of freedom would not, in fact, deprive artists of a substantial amount of income, perhaps enough to make it difficult for them to earn a living wage.

    That being said, let me also say that my concern is only for the artists/craftsmen in the creative industries. I’m not at all concerned for corporations … they already have too much of the pie, and their practices, along with their treatment of artists, doesn’t seem just to me.

    I sometimes think that these new technologies may be able to cut out (or at least substantially reduce the influence of) large corporations, which would be a good thing in my book. I also think there might be a way to restructure the way revenue is generated in such a way that some of our current concerns around this topic become a “non-issue,” though I have no idea what that might look like.

    Finally, I still don’t get how you can say this: “it may be possible to argue that sometimes, an author can be deprived when unauthorized commercial use occurs. But file-sharing?”

    Maybe this is my big stumbling block, but I fail to understand how file-sharing can do anything BUT deprive artists of potential payment if it’s practiced widely and without restraint.

    A small example: I know so many students who no longer go to the theater or purchase DVDs because they either view the film (illegally) online or get a bootleg copy from a friend. (Now, I think one response is for the industry to lower prices, but that’s not the point at present.) How does that NOT negatively impact the revenue?

    And while the exposure that file-sharing brings might be good for an artist, it still doesn’t help him/her pay the bills.

    Once again, I appreciate the conversation but am not trying to “demand” a response. :) Thanks for helping me think through all this!

  4. gnuosphere Says:

    By “free and open” I just mean the idea that anyone can legally copy and distribute anything, without restriction.

    Then I don’t support laws that would demand “free and open” access to cultural works. I strongly feel that attribution is a right that should be respected by default. I also feel authors should have the right to choose to restrict derivative works being built from their work. Realistically, most authors would not choose to restrict derivative works but in some cases it makes perfect sense. Regardless, I don’t feel that authors have a moral obligation to allow derivative cultural works (works of a practical nature are different of course – like source code for a computer program). Finally, although it is probably unwise for most authors to restrict commercial use of their work, I don’t feel it is unethical to do so. In short, the world of “free and open” is far from what I would imagine.

    And I suppose I’m skeptical that THAT kind of freedom would not, in fact, deprive artists of a substantial amount of income, perhaps enough to make it difficult for them to earn a living wage

    In a world without any restrictions I agree that this could result in problems.

    I fail to understand how file-sharing can do anything BUT deprive artists of potential payment if it’s practiced widely and without restraint.

    The sale of copies is only one revenue stream. In fact, the proliferation of a work undoubtedly increases the potential of other streams. Furthermore, since sharing doesn’t deny payment, the stream of sales revenue is still very much alive (I’m not the only person who pays for what he can often get for no cost). And for those who argue that “denial” takes place, what about the sales that result in a work being shared where otherwise the buyer would not have been exposed to it?

    I know so many students who no longer go to the theater or purchase DVDs because they either view the film (illegally) online or get a bootleg copy from a friend.

    I wouldn’t rely too heavily on data from that specific group of people (students by definition generally have much less disposable income than most adults so they will often do what they can to experience culture without direct payment). For people with disposable income, they will continue to go see movies (assuming they enjoy that sort of experience to begin with). Bootleg copies are often of poor quality but regardless of that fact, movie producers could always delay production of copies for distribution. If this is happening without permission then that is a privacy and security issue, not a copyright issue.

    And while the exposure that file-sharing brings might be good for an artist, it still doesn’t help him/her pay the bills.

    I’m surprised to hear this. Exposure is the foundation to generating income. Without exposure, how can an artist make much money at all? Let’s say you are an artist (a musician for example). You don’t have a deal with a megacorporation that takes your copyright in exchange for exposing (through advertising like MTV) your (or more accurately, what was formerly your) art. What should you do? Keep in mind that this is the case for 99% of musicians in the world. How do you get yourself (or your band) known? Exposure is where it all starts. Without exposure there can be little revenue.

    If all copies of music were shared do you really believe that “professional” musicians (i.e. musicians that make a living from their art) would cease to exist?

  5. Eric Hoefler Says:

    “If this is happening without permission then that is a privacy and security issue, not a copyright issue.”

    I don’t see how it’s not a copyright issue …

    “I wouldn’t rely too heavily on data from that specific group of people (students by definition generally have much less disposable income than most adults…”

    Until I informed my father, a retired man with a posh house near the beach, that viewing films online from illegal sites or getting copies from his friends (his 50+ year-old friends) wasn’t legal, he had no clue. We even spent a short while arguing over the issue until I showed him, in writing, that it’s not legal. So I’m not sure I buy the argument that it’s “just the kids.”

    “Exposure is the foundation to generating income.”

    Yes, in the system we currently have, that’s true, but only because exposure leads to contracts leads to sales. In a culture where sharing is predominant, exposure leads to more exposure leads to more sharing … but not necessarily to sales (unless alternate revenue systems are instituted).

    “If all copies of music were shared do you really believe that “professional” musicians (i.e. musicians that make a living from their art) would cease to exist?”

    Perhaps in the sense that we currently mean it, yes. There may still be musicians who are “sponsored” by the wealthy (think Medieval times), when the “masses” couldn’t afford to pay for music anyway. If the masses now “refuse” to pay for music, how is that any different? That’s not something I’d want to return to. I’m being a bit hyperbolic, but I don’t think the point is far off.

    It seems that you’re thinking of file-sharing in terms of its present uses, where some sharing among friends doesn’t significantly impact the market. I’m thinking in terms of what file-sharing will become if people continue to think of it as “no big deal” (which seems to be the norm online). When the majority of people obtain their entertainment through “shared” files rather than purchased ones, then the revenue simply won’t be there (or, as I said in an earlier comment, will have to come through some other means that doesn’t yet exist).

    Nothing I’ve heard so far convinces me otherwise, but I actually do hope that 1) I’m wrong, and 2) someone will convince me (because it all seems somewhat inevitable anyway).

    But predicting the future is a tough racket, and usually, when predicting A or B, it turns out to be C anyway.

    At any rate, I agree with most of your last comment, and we’ve found some common ground. My only real concern is that 1) artists have a shot at making a decent living wage from their work (encouraging more and better art), and 2) journalists and academics have a shot at earning a decent living wage from their research and publications (encouraging more thoughtful, supportable, and varied opinions backed by substance, not just flash.)

    I don’t mean to scream that the sky is falling, I’m just concerned and think the issue is worth thinking about as carefully as we can.

  6. gnuosphere Says:

    I said: “If this is happening without permission then that is a privacy and security issue, not a copyright issue.”

    You respond: “I don’t see how it’s not a copyright issue …”

    I should have said, “delay publication” instead of “delay production of copies for distribution”. Does this make sense? That is, do screenings and not offer copies. I suppose this could become a copyright issue but it seems worse than that. Distributing unpublished copies is clearly wrong and seems to go beyond copyright law. Perhaps if the work is a movie then it wouldn’t be termed a privacy issue – so I take that back. But what if it was an unpublished diary? I guess it comes down to this question – Is screening a movie considered publication?

    Regardless, a strategy for some movie makers may be to offer screenings for a while before selling high-quality digital copies to people.

    So I’m not sure I buy the argument that it’s “just the kids.”

    I wasn’t arguing this. Please don’t use quotation marks like this as it appears as though I said this. I was simply pointing out that the amount of disposable income a student has compared to someone fully employed may make students less likely to pay for art as often. The ignorance-of-the-law factor you point out probably affects both parties relatively equally but this is beside the point. People should pay for art because they appreciate it and they have the means to do so – not because the law says that noncommercial sharing is a crime.

    Yes, in the system we currently have, [your statement that 'Exposure is the foundation to generating income'] is true, but only because exposure leads to contracts leads to sales.

    Yes though “sales” are just one form of possible revenue. What about contracts to do other work? Are you saying that contracts will not form if copies of the artist’s work are shared by the public? If so, what makes you believe this?

    In a culture where sharing is predominant, exposure leads to more exposure leads to more sharing … but not necessarily to sales (unless alternate revenue systems are instituted).

    You speak as if alternative (to sales) streams don’t exist yet. When a movie maker sells related merchandise or a musician plays a live show or a painter is contracted to do an original piece or an author sells hard copies of her book…etc., those are alternative revenue streams.

    Perhaps in the sense that we currently mean [professional], yes.

    If “professional” means an artist who makes enough money to care for her/his needs without supplementing then I don’t see how such people would *not* exist just because works are shared with some rights reserved. In fact, I find it perfectly reasonable to assume that some artists would easily do it and generate a large income, some would do it and generate just enough, some would do it and have to supplement, and some would do it and not generate any income and have to do it as a hobby. Unless I’m misunderstanding you, I would like to know why you believe that if only some rights are reserved, all artists would drop down to the supplement/hobby brackets. I think you underestimate how important exposure is. Get exposure, mix it with talent, and surely there are many on this planet who would earn a livelihood.

    I’m thinking in terms of what file-sharing will become if people continue to think of it as “no big deal” (which seems to be the norm online).

    Well, ethically it isn’t a big deal because there is nothing wrong with sharing published works. Legally, in some countries it is a *huge* deal as it can destroy your financial life. The law unjustly favors the copyright licensor to an extreme. This is a big deal and reason why file-sharers should understand the risks before they decide what to do. But morally?

    “[revenue] will have to come through some other means that doesn’t yet exist).

    As I already mentioned, there are many streams. Some of these streams have been around for centuries – long before copyright law. And who knows – more streams may pop up.

    “[I hope that] someone will convince me (because it all seems somewhat inevitable anyway). But predicting the future is a tough racket, and usually, when predicting A or B, it turns out to be C anyway.

    Convince you of what? What is inevitable? I have no predictions.

    My only real concern is that 1) artists have a shot at making a decent living wage from their work (encouraging more and better art), and 2) journalists and academics have a shot at earning a decent living wage from their research and publications (encouraging more thoughtful, supportable, and varied opinions backed by substance, not just flash.)

    So basically, you seem concerned that if some rights were reserved instead of all rights, then artists and academics would suffer because it would be impossible to make a living wage. Is this concern valid and on what evidence is it based?

  7. Eric Hoefler Says:

    “So basically, you seem concerned that if some rights were reserved instead of all rights, then artists and academics would suffer because it would be impossible to make a living wage. Is this concern valid and on what evidence is it based?”

    I wouldn’t say “impossible,” but maybe more difficult. I don’t know if this is a valid concern or not … it’s only a concern, not a prediction. That’s why I’m reading whatever I can find and talking with whomever will talk back to try to understand this better.

    You seem to think that concern isn’t valid. Why do you think that?

    I do think that “some rights” is perfectly reasonable and appropriate for most artists, but I think that only in the context of the current state of the entertainment/publishing markets. As file-sharing increases, and is viewed as unproblematic by more and more people, then, yes, I worry that this might negatively impact the ability of artists to make a living wage. But again, I have no solid evidence to support this … just a concern.

    As for the kinds of alternate revenue streams you mention, most are not available to the typical artist. Unless we’re talking mainstream popular, related merchandise isn’t likely and live shows don’t generate much income. Besides, that’s still attaching revenue to something other than the artist’s original creation (the movie, the song, etc.). Why shouldn’t artists be able to generate income from the art itself, rather than having to use their art only as marketing?

    Also, just out of curiosity, do you have an opinion on the recent Lane Hartwell controversy?

  8. Sicheii Yazhi name Gnuosphere on File Sharing Says:

    [...] helping me continue to think about copyright over on his blog.  It started with his post "sharing denies nothing" in which he says: Most certainly, file sharing does not include payment (hence [...]

  9. gnuosphere Says:

    You seem to think that concern isn’t valid. Why do you think that?

    So to be clear, we are now considering that reserving some rights might make garnering a living wage from one’s art “more difficult” rather than “impossible”? So then we agree that if all of a sudden copyright law allowed people to share copyrighted files, artists would still exist who garner an unsupplemented livelihood through their work?

    If we agree then why is it you believe that those artists will have a “more difficult” time doing so? If an artist has little exposure, then allowing work to proliferate seems to be a good business decision. Doing so increases the likelihood that other streams will widen. As well, since sharing denies nothing, payments are still possible. On the other hand, if an artist has lots of exposure (i.e. is famous) then not only can they make money from payment regardless of the license, they will be better able to leverage other streams (what streams are leveraged depends on the kind of work they do).

    From an ethical perspective, artists who have published their work should not prevent people who enjoy that art from sharing copies. From an economic perspective, it makes no sense to do so. It makes no sense for the artist nor for those who enjoy digital copies of an artist’s related work. Reserving some rights is more than enough to move beyond the current conflict.

    Why shouldn’t artists be able to generate income from the art itself, rather than having to use their art only as marketing?

    When you word things like this it leads me to assume you believe that reserving some rights denies payment. This brings us back to my original post and I disagree with this assertion. Reserving some rights does not disable (“Why shouldn’t artists be able [...]“) payment opportunities. What artists should not be able to do is stop people from sharing copies of published work.

    Also, just out of curiosity, do you have an opinion on the recent Lane Hartwell controversy?

    I’m not familiar with it. I just did a search and found something about a picture used in a video without permission. Though I’m missing details it appears as though both parties have gone extreme. Those who used the picture didn’t even respect attribution and they might be garnering income through the use. Those who hold the copyright shouldn’t be given the power to force people to ask for permission if the use respects attribution and is noncommercial. My understanding is that the image is All Rights Reserved which is unfortunate. I think that those who made the video should be able to do so without permission. But if they are not even respecting some rights, I have little sympathy for them.

  10. Eric Hoefler Says:

    You say: “From an ethical perspective, artists who have published their work should not prevent people who enjoy that art from sharing copies.”

    And also: “What artists should not be able to do is stop people from sharing copies of published work.”

    Why shouldn’t an artist have control (even if it’s limited in time) over what happens with his/her creations?

    Also, the word “share” sounds like a nice and ethical thing. Like I might share a good book or song with a friend. But to “share” something implies two or more parties interacting with one thing. In the digital world, to “share” is, by nature, to copy and distribute. There’s no real “sharing,” because one person is literally giving a copy to another, not “sharing” it. A physical book can be “shared,” because both people use the same book. A digital file is copied and distributed.

    Even with physical objects, if I want a friend to read a book that I like, I’ll buy him/her a copy. I could lend him that physical copy, but I don’t. Not only do I have all my annotations in my copy, but I feel ethically compelled to buy my friend a copy in support of the author whose work I feel is good enough to want others to know.

    And, in the end, I feel this issue is first and foremost an ethical (not legal) issue. In fact, if an ethical understanding of this issue were more widespread and commonly accepted, I don’t think we’d need as much legal enforcement. If an individual finds an artistic work valuable, then ethics and common decency should compel him/her to support that artist … which most typically occurs through payment.

    I suppose you would argue that once exposure happens through distribution, then those who enjoy the work will eventually pay. But why pay, when I already have a copy? For music, this model might work … musicians typically generate a large number of songs, so missing out on payment of a few songs isn’t as big a deal. But what about an album? A movie? A book? Authors and filmmakers don’t typically create nearly as many of those works as musicians create songs.

    Again, I’m mainly playing devil’s advocate and unfortunately have no real solutions or compromises yet. I can see your side of the argument. Unfortunately, I can also see objections, and I haven’t resolved them in my own head yet. Feel free to cut this exchange off whenever you get bored or exasperated by it. I’ll definitely understand!

    Thanks again for your thoughts.

  11. gnuosphere Says:

    Why shouldn’t an artist have control (even if it’s limited in time) over what happens with his/her creations?

    Who is arguing that artists should not have any control? If specifically you are referring to distribution there are good reasons (both practical and ethical) as to why the public should be free to share.

    Also, the word “share” sounds like [...]”

    I’m not understanding your objection to the word “share”.

    I suppose you would argue that once exposure happens through distribution, then those who enjoy the work will eventually pay.

    Some will and some won’t. However, under such a scenario the price would most likely be set at “pay what you wish” which will allow many who could not otherwise pay for the work pay a little.

    But why pay, when I already have a copy?

    If you appreciate the work and have some disposable income, why not pay? A good reason might be because payment is not made easy enough or denies anonymity. However, that is a systematic problem that can be overcome.

    Again, I’m mainly playing devil’s advocate and unfortunately have no real solutions or compromises yet.

    What about the CC model? Of course, it is just a model. Any government could adopt laws similar to CC without adopting the CC model exactly. That is, a base of copyright law that allows noncommercial propagation of a work yet makes adding other restrictions easy for an artist. It appears to me that several very smart people have come up with “solutions” and “compromises” already. But if one doesn’t support noncommercial propagation of published works (is that better than saying “sharing”?) then I don’t see how a fair solution involving a compromise can be had. To support sharing is hardly extreme. Complete, unrestricted use of works is extreme – but sharing doesn’t mean that.

  12. Gnuosphere on File Sharing « Archive of “Sicheii Yazhi” Says:

    [...] helping me continue to think about copyright over on his blog. It started with his post “sharing denies nothing” in which he says: Most certainly, file sharing does not include payment (hence [...]

  13. Gnuosphere on File Sharing | EricHoefler.com Says:

    [...] helping me continue to think about copyright over on his blog.  It started with his post "sharing denies nothing" in which he says: Most certainly, file sharing does not include payment (hence [...]

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