separating fact from fiction

I stood in front of the 150 or so secondary students and gave my lil’ ditty on our proposed AUP. When the following point came up in the slideshow, students who had been in my 1st semester tech ethics class chuckled:

Students must not transmit unauthorized, copyrighted works (such as movies, music, games, etc.) over the school network.

“Yeah, I know what you’re thinking”, I said. “But let me be clear on one thing. Regardless of what you or I think of the ethics, the legality is something else. Many of you may now have a solid argument as to why it should be OK to share copyrighted works but the fact for now is, it’s illegal. Doing so is irresponsible in that it puts the school at risk.”

Sorry to let the extremists down. This school won’t be used as a site for civil disobedience (though I freely admit to fantasizing it as such). However, I hope the extremists can take some comfort in knowing that few students leaving my class will mindlessly perpetuate fiction like “stealing” and “piracy”.

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12 Responses to “separating fact from fiction”

  1. rapleafwatch Says:

    How quaint: the law of copyright has no ethical foundation, yet we must defer to the law.

  2. gnuosphere Says:

    the law of copyright has no ethical foundation

    Speaking in regard to US law, I would say that ethics do exist in the foundation. The constitution specifically states that the purpose is to promote progress in science and art. This is entirely ethical. However, the constitution understandably lacked vision. That is, the founders never collectively imagined digitized networks that would profoundly change information propagation possibilities. If the founders had identified privileges publishers could take (like Creative Commons does today) rather than vaguely state “the exclusive right”, it is more likely we wouldn’t be facing modern perversions (e.g. the DMCA) of the foundational law.

    yet we must defer to the law.

    For now in our case. Our community hasn’t discussed the possibility of removing this from the AUP. Perhaps we can consider that. I certainly wouldn’t object.

  3. rapleafwatch Says:

    Actually, the Constitution states a prudential foundation, i.e., we’ll be more prosperous as a result of having patent and copyright protection for inventors and authors, rather than an ethical foundation.

    Assertion by legal process of copyright against an infringer is burdensome and expensive. The technologies of our era only make infringement that much more damaging insofar as copying and distribution are vastly easier. DMCA may strike a reasonable balance against the new ease of infringing copyright. And in some sense, DMCA makes it too easy for ISPs and the search engines to escape liability for participating in copyright infringement, just as the CDA chose to create immunities for ISPs and the search engines for their role in assisting the publication of defamatory speech. In the case of Blumenthal v. Drudge, the trial court expressed regret for the policy considerations that caused Congress in CDA to shield AOL from liability for publishing Drudge’s defamatory speech online. Or would you argue that our new era of “digitized networks,” when it’s so easy to defame somebody, we should give everyone who uses the Internet to libel or slander (always a tricky question which it is) a pass?

  4. gnuosphere Says:

    Actually, the Constitution states a prudential foundation, i.e., we’ll be more prosperous as a result of having patent and copyright protection for inventors and authors, rather than an ethical foundation.

    My point is that the purpose of US copyright law is to promote the sciences and arts, not reward authors/inventors with privileges. The latter is the argued means to the end, not the end itself – and open to debate. To put the public first (which the constitution does) is the ethical view. That’s all I’m saying.

    The technologies of our era only make infringement that much more damaging insofar as copying and distribution are vastly easier.

    Copying/propagating published works does not cause “damage”. I don’t understand what you’re saying. Could you please explain the “damage” caused when I, for example, make an unauthorized copy of my music CD and give it to my friend?

    After that you mash-up two disparate issues. Libel/slander/defamation/threat is libel/slander/defamation/threat. But what does that have to do with copyright law? If I spread lies about you or defame you or threaten to kill you, you don’t sue me for copyright infringement – whether it happens on the net or not.

  5. Verbal DiaRIAA Says:

    Could you please explain the “damage” caused when I, for example, make an unauthorized copy of my music CD and give it to my friend?

    Sure, Mr. Rock. When you walk into a store and steal a CD you cause damage. Making illegal copies for other people is the same. It’s stealing the artists’ property. The artists need protection from piracy. How do you expect artists to make any money if nobody has to pay? Who is going to protect them? The Internet is great but we need to protect the artists from the harm that the stealing of intellectual property causes. If we don’t protect the artists, they will not make any money. No money, no art. The DMCA is totally reasonable. Without it we will all suffer. Think about it. Or do you really want a world without quality books or movies or music?

  6. rapleafwatch Says:

    Gnuosphere:

    Sometimes or quite often the ethical is a balance. Copyright law attempts to strike a balance between the interest of authors and inventors and the interest of the public.

    Verbal has his own explanation of the concept of damage. I have a slightly different view. Congress creates monopolies of limited duration in behalf of authors and inventors, whatever the rationale. If copyrighted works can be published by other parties over the Internet or other “digitized networks,” then the author’s monopoly is destroyed and the measure of the damages to him is the amount of income the author forgoes. It is possible within economics to use data on the number of copies downloaded to estimate the income forgone. The damages are quantifiable and significant.

    The current language understands a /mash-up/ to mean something that combines data from different sources, often in a visual setting, to provide a more meaningful result. I was indeed mashing up the legal pass given to companies that abet copyright infringement and profit from it, e.g., the search engines and ISPs, under DMCA and the protections given to ISPs that host defamatory material under CDA. In both cases, Congress chose to ignore the far greater harms that could be wrought over “digitized networks” than through traditional or print media. In plain terms, stealing copyrighted materials over the Internet is still theft, defaming someone over the Internet is still defamation, but the harms are far greater. Yet Congress in the late ’90s, in CDA and DMCA, chose to view the Internet as an inconsequential toy.

  7. gnuosphere Says:

    Sometimes or quite often the ethical is a balance.

    I agree. That’s why I support CC.

    If copyrighted works can be published by other parties over the Internet or other “digitized networks,” then the author’s monopoly is destroyed

    And how is a monopoly a “balance” between the authors and public? Arguing in favor of monopolies is just as extreme as arguing that there should be no copyright at all. Why not something in-between?…something on the spectrum.

    and the measure of the damages to him is the amount of income the author forgoes. It is possible within economics to use data on the number of copies downloaded to estimate the income forgone. The damages are quantifiable and significant.

    I disagree. However, the MPAA, RIAA, and BSA would certainly agree with you. None of these organizations wish to mention the fact that increasing the availability of works bolsters other revenue streams. Surely an artist would rather you have a copy of her work and not pay for it than not have a copy at all. Any artist arguing otherwise is not being honest. Microsoft would rather you used an unauthorized copy of Windows than GNU/Linux. These are undeniable facts. So to use words like “stealing”, “compensation”, or “damages” in this debate is without warrant. One who does so is either entirely confused or is in the business of confusing others. When you steal from someone or cause damage that should be compensated you are doing something morally wrong. To consider the unauthorized propagation of authorized copies an immoral act is lunacy, especially when it’s done non-commercially. (Unless it is done out of desperation, I see no problem with fining or taxing those who try to profit from selling storage (e.g. a DVD) of unauthorized copies of restricted works. Perhaps, the fine could then systematically be distributed among the most deserving artists.)

    I was indeed mashing up the legal pass given to companies that abet copyright infringement and profit from it

    Then grant authors, for a limited time, the privilege to monopolize commercial use of their works. That would be a more reasonable balance with the computer using and networking public of the 21st century.

  8. rapleafwatch Says:

    Patents and copyrights are monopolies of limited duration. I don’t argue in favor of monopoly, I merely observe the obvious fact that these rights confer monopolies on inventors and authors. You’d have it that I’d written a Chicago School style defense of monopoly as such. That’s mistaken. And the law already has found an in between solution by putting expiration dates on copyrights and patents.

    If you disagree with the idea that the income forgone as a result of destroying the author’s monopoly is the measure of his damages, would you care to provide an alternative theory of what happened to the author’s income when his work was swallowed up in the de facto public domain of the Internet?

    While tactical release of certain materials for a limited period into the public domain may serve to make an artist more widely known (that’s called a promotion), it seems doubtful that there’s a general rule that removing all copyright protections for materials distributed over the Internet will make the artist more prosperous. That sounds like the logic of a late night infomercial. In any case, this is a business decision to be made by the artist and his publishers, and one can’t create a public right out of the sense that the artist should be releasing his materials into the public domain for his own good.

    I’m sure any artist is glad that you listen to his music, but I don’t believe the artist wants you to have a copy without paying for it. That’s the simple truth in the fact that legal copies always cost something, whether on CD or downloaded from iTunes. If you won’t pay, then the artist will reluctantly accept the unpleasant truth that you don’t place real value on his work. As for Microsoft, when they set a price on Vista, they’ve also accepted the fact that they’ll lose some market share to zero cost Linux. They might turn a blind eye to pirating in Asia where their products tend to be unaffordable relative to income, but that’s really a bet on securing permanent market share in the region and an enormous base of paying customers in the long run.

    You don’t believe that there’s an accompanying sense of immorality in destroying the artist’s income stream and that seems to be the problem with the Internet. What could be the harm in a little typing? My sense is that you might not see the harm in many forms of white collar crime, which also never involve more than a little typing.

    You try to restrict the author’s copyright to “commercial use” of his work. Are you saying that when someone uses the Internet to circumvent an ordinary commercial transaction, then the author’s copyright isn’t violated? Any form of stealing is justifiable because it’s outside the form of a commercial transaction?

  9. gnuosphere Says:

    And the law already has found an in-between solution by putting expiration dates on copyrights and patents.

    A) That “in-between” solution was fine before the age of digitization and networks, but

    B) The length of time of expiration has skyrocketed out of control. From 14 years originally, to the lifetime of the author + 50-70 years.

    Not only do we need to go back to something resembling the founder’s copyright but need to acknowledge the technology of the 21st century and carve out a space for the noncommercial propagation of published works for the public. Creative Commons is an organization doing this, and doing this quite well. Hopefully, one day a country will take the lead and use CC (or something similar) as a model for their foundational copyright laws. As far as I know, CC is currently just an option in every country that it has been ported to. Balanced, 21-st century law would make any published work restricted, by maximum, to attribution, derivation, and commercialization. This would lift the harmful (which was latent until the late 20th-century) ban on distribution.

    would you care to provide an alternative theory of what happened to the author’s income when his work was swallowed up in the de facto public domain of the Internet?

    I’m not understanding what you are asking me.

    it seems doubtful that there’s a general rule that removing all copyright protections for materials distributed over the Internet will make the artist more prosperous.

    I agree with you (though the word “protection” makes no sense – “privileges” is more accurate). This is why authors who wish to maximize opportunities for profit should reserve some rights – like the ones described by Creative Commons.

    You don’t believe that there’s an accompanying sense of immorality in destroying the artist’s income stream and that seems to be the problem with the Internet

    You seem to hold a belief that if society was allowed to share culture, then the artist’s income from sales would be “destroyed”. I don’t see any reason to believe that. Therefore, your question has no meaning to me. Certainly artists could sell copies yet allow those sold to freely propagate. People more financially fortunate (and even some not so fortunate who find a way) are often willing to pay an artist for copies of their works..especially if the artist is good, which is the way it ought to be.

    You try to restrict the author’s copyright to “commercial use” of his work.

    No. Commercial restrictions are just one part. Attribution is the most important part of copyright that authors should reasonably have full rights over. In fact, it could be argued that attribution should last forever (US law doesn’t currently consider this a moral right). As well, some may desire to prevent derivative works. I’ve got no problem with that either. As well, commercial restrictions on the public are a fair bargain. All of these rights are a fair bargain in exchange for the citizen’s right to propagate. This of course applies to cultural works (e.g. music, movies, images, etc.). I think practical works (like software) should allow derivative works and optimally, commercial use as well.

    Are you saying that when someone uses the Internet to circumvent an ordinary commercial transaction, then the author’s copyright isn’t violated?

    I’m not understanding the question. It sounds like you are asking, “If someone breaks the law, are they breaking the law?” Ask a lawyer. If I have no money but I have access to a computer with Internet access, what is it that I’m circumventing?

    Any form of stealing is justifiable because it’s outside the form of a commercial transaction?

    I don’t understand what you mean by “stealing”. It is impossible to “steal” a copyrighted work. You must mean “distribution” or “propagation”. So long as a cultural work has been published, then it is not ethically wrong (i.e. it’s “justifiable”) to propagate it, especially if it is not for profit. If it hasn’t been published and you leak it to others, that is unethical.

  10. rapleafwatch Says:

    There are too many points to respond to in this and it seems we’re going back and forth.

    Let me state a general position. My heart doesn’t bleed for Snoop, Missy Elliot, Foxy Brown, etc., but there’s something representative of its true nature in the Internet’s propensity to trample copyright protections. Actually, it’s in Google’s business interest to provide you with opportunities to violate copyright. You got to Piratebay because Google’s wants to help you find any torrent you might be looking for. Google will offer an alternative site if Piratebay is lacking. But that’s not all. The Internet has also led to unprecedented distribution of the worst imaginable pornography. Also in Google’s interest. And there’s online gambling. and then there’s keyboard defamation. Why confront someone with criticism face to face when you can libel him in a blog, forum or USENET post? Finally, there’s the erosion of privacy, which caters to the stalker in all of us. Why buy a telescope when you can spy on your neighbors from Google?

    Are there good things about the Internet: Project Canterbury, Wikipedia, etc.? I doubt that visits to these and similar sites consume as much Internet resources in the course of a day as the torrents, porn sites, gambling sites, and keyboard stalking. Any decent university’s electronic collection of electronic databases eliminates the need for Google.

  11. Eric Hoefler Says:

    You’ve probably already seen this, but just in case … I thought you’d appreciate:

    http://www.edge.org/documents/archive/edge235.html#kelly

  12. gnuosphere Says:

    Yes, thanks Eric. I’m still thinking through it though I think Kelly outlines some key points. Though “patronage” is accurate, perhaps a better word to describe what Kelly says is “goodwill”. Usually, when people think of patronage they think of contracted work for hire. And while I think that is important and still another valid revenue stream it is probably important to differentiate that from people who contribute money after-the-fact as a financial demonstration of goodwill. Those sorts of people will always exist and are another important revenue stream. As well, I think people are more likely to show appreciative goodwill when they are shown respect by the author (i.e. they are given permission to freely share) and can pay the artist easily – knowing most (or all) of the money is going directly to the artist. That is, people are less likely to pay for works when they know the money is going not to artists but to an organization that screws the public (e.g. RIAA). As well, people will be more likely to show goodwill when they know the work itself is licensed somewhat liberally.

    Though well-intentioned, people who go out and buy RIAA CDs and MPAA DVDs because they want to “support the artists” are misguided. Such people are supporting a mercantilist world, not the artists.

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