October 24, 2006

Stealing Redux

Mike: Good call. I carefully didn't say I call it stealing myself, preferring to ask the question - but I agree with your point. My problem, though, is that your response, while reasonable, is all too often twisted far the other way; i.e. 'if we can't call it stealing then it's OK.' My point is that while we probably shouldn't call it stealing, there is definitely a point where something is happening that is not ok - namely, making copies of someone else's work, handing them over, and accepting money for them without ever entering into an agreement with the artist or rightsholder. Note also that this is entirely a different animal from making a copy for personal use; the transaction makes the difference. I'm explicitly not making a statement about copying for personal use; my thoughts on that are jumbled. I'm limiting my disapproval to duplication and sale.

This is the distinction I think is often lost, and is the reason I find the 'lamentations' by copyfighters over the actions taken against AllOfMP3 so bloody annoying - I've had people email me and tell me I'm being a copyright militant bastard over Eyes On The Prize when, for example, I'm frothing about the fact that there are lowlifes busy selling DVDs to which they've burned the crappy files that Downhill Battle posted to the internet. Selling. That's the key word. Yes, I apologize for bringing my personal baggage to this, but HA! it was my post originally.

Now again, if AllOfMP3 was paying artists for their work - then I'm wrong. But nowhere have I ever seen any evidence that they were; all I have seen is stories which indicate that the company was, if anything, gaming the law to make minimal if any payments to a Russian organization which in turn wasn't paying anything to anybody outside the country - so the artists themselves weren't making a thin dime. In other words, those lamenting AllOfMP3's getting smacked around are lamenting their inability to pay a vendor who isn't paying the artists anything.

This is a personal reaction to a story I don't follow closely. If I'm wrong about the circumstances, then so be it. But that's what produced my reaction.

Posted by jbz at October 24, 2006 5:43 AM | TrackBack


Tobias: I've never met you, but JB's told me enough about you that I take your word for it when you talk about what the law says.

However, m-w.com says this about theft: "1 a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property". Another dictionary says basically the same. "To steal" is essentially defined as to commit a theft.

Copying music, or software or whatever, isn't taking and removing anything. The original copy still exists exactly as it was before.

It's different from jumping out of a taxi without paying - the driver could have spent his time giving an honest passenger a ride. It's also different from stealing electricity: the power I use today comes from burning coal, which must be extracted and burnt, and then is gone.

Being different from other things that are wrong doesn't make it right. People who make things should get paid. (I reluctantly add "unless they don't want to be paid" because it's a distraction, but it's true. Some people do have other motivations for doing what they do.)

My point is that information is fundamentally different from physical resources, people's time, and so on, and not in a some "information wants to be free" sense. And that the law, as far as I know, does not yet recognize this. Many, probably most, people don't recognize this either. As long as we continue to treat these two distinct things as though they were the same, the law will continue to be broken.

Posted by: maw at October 26, 2006 9:50 PM

I didn't say it was innocent. :-) Still, back on point. I don't support DRM for the simple reason that it's infeasible - i.e. there will *always* be technological ways around it, and therefore the companies will *always* push for legal counters (i.e. DMCA) and we will be at risk from stupid legislation. I firmly believe that legal restriction of infringing behavior (i.e., outlaw theft) is the way to go.

Having said that, I don't think DRM should be outlawed, or anything - I just think we should let the market decide. I do. I buy music from iTunes Music Store, and I own iPods. This 'supports DRM.' Why? Because for my use patterns, FairPlay DRM is relatively unobtrusive and doesn't interfere with what I want to do. However, I don't buy very much music from ITMS, for the same reason - because FairPlay makes me nervous enough about the security of my music that I would rather buy a physical CD and rip it. This is because Apple's DRM and business model places the onus of the backup of my music squarely on me - and I'm lazy. If Apple had an option whereby if I lost my music library due to, say, hard drive crash, I could pay them a one-time administration fee and re-download all the music I'd purchased from them (re-encoded with FairPlay DRM, just like I'd gotten it) then I might be much more inclined to go with ITMS downloads - but as it stands, buying a CD means I get a physical object to go 'Ooh' over as well as get a permanent 'backup' copy to file on the shelf in case my machine goes oops - or my iPod decides to )@()!@ sync with the laptop with no music on it while I'm on the road.

Anyway, sorry, to sum up - I, personally, am not 'against' DRM. I choose to give my buying dollars to solutions which don't use it, or use the least restrictive versions. Hence, I use eMusic.com, which provides music as DRM-free MP3s (and, as far as I can tell, having checked, *does* pay royalties) and use ITMS, which has low annoyance factor for me. I don't use monthly subscription models because I don't like them and don't trust them, and won't give them my money.

If ITMS had a mode whereby I could download a track to try it, and then unlock it to buy it, I'd be happy - but I don't see that happening, because I subscribe to the belief that if you do that, someone will just figure out a way to crack the unlock key system, and Apple is under no obligation to make my life easier to the point that it jeopardizes their business model, so long as I'm willing to pay them enough money to stay afloat under the current one.

I guess my main gripe is the capture of legislation by content owners, and the use of DRM technologies as a 'tripwire' to criminalize behaviors which are, in my opinion, simple market corrections to their monopoly rent-seeking.

Posted by: J.B. Zimmerman at October 25, 2006 12:18 PM

I didn't mean to sound like I was ranting at you -- more ranting with you! :) I agree that the music industry has been slow on the uptake with providing the services (i.e., distribution mechanisms) that people want. The fact that they get away with it is probably evidence of market failure. In large part, what you are doing is simply substituting a new "try before you buy" mechanism -- the internet -- for the legacy system which has been utterly destroyed by bad regulatory policy -- radio. People used to learn about new music through radio play, and independent DJ's had the ability to air less mainstream music, thereby exposing people to stuff they otherwise wouldn't have bought.

But, if you truly believe that the activity you describe is innocent, and ultimately in the music companies' interest (since it leads you to buy more music), why don't you support DRM, which would enforce 'altruistic' nature of your downloading? (i.e., a limited number of plays, or a token system that limits how many people can play a shared copy simultaneously?)

Posted by: Tobias at October 25, 2006 11:45 AM

Toby- These are excellent points. One reason for my reticence over the use of the 'stealing' label is the tendency to apply it to all downloading. I download music (there, I'll say it flat out). When I do so without paying for it, it's almost always from friends. I don't use filesharing networks, not really for moral reasons but because they're such a PITA and because I can usually get hold of better quality versions of the stuff I want just by asking people who already have it. I don't even have them installed on my Mac anymore - this is mostly because my cable upload speed is so crappy it was pointless.

Back to my main point. I wasn't finished. I have a tendency, although I won't lie and say it's a rule, that if I find music I really like, I'll just go buy the CD and rip it, or if it's a single song only, buy it off ITMS or eMusic.com if it's available. This is why I hesitate to conflate the two terms.

You're quite correct that legally, there's no argument there. The initial act of downloading is the theft, in your argument, since no monies have changed hands. My later purchase of the music doesn't in any way retroactively change that. However, the point of my post was that there is a world of difference, in my mind, between this activity - where there can be market behavior which is stymied by a lack of available mechanisms (try before you buy, the pricing problems you describe, etc.) and the hypocrisy of supporting a business 'because it isn't the RIAA' or 'because it doesn't use DRM' which is, nevertheless, itself little more than outright theft - and for profit, not end use.

Posted by: J.B. Zimmerman at October 25, 2006 1:18 AM

Where did this idea that pirating IP is not "theft" come from? It is based entirely on the false premise that "theft" or "steal" only apply to physically depriving another of tangible goods. That's simply false. First, look up "theft" and "steal" in most dictionaries, and it includes definitions that don't encompass the presumed limitation of physical goods.

For example, one can steal "services." Not paying for a cab ride is a "theft." Tapping into the power lines and taking unmetered power is "stealing", but it is a stretch to say that the electrons are any more tangible than the value of the IP. The victim (i.e., the power company) is harmed at about the same level as a record company -- i.e., almost not at all. But if everyone took power without paying, the power company would go broke, and no one would get electricity.

I think the confusion may relate to someone trying to apply the technical legal concept of "conversion," which is often conflated with theft, but does not apply to theft of non-tangibles. The elements of conversion include that a rightful owner be deprived of the use of property. But conversion is only one species of "theft." (Other species include "Robbery" -- the taking of property by force; "Burglary" -- theft from a dwelling (and burglary used to be even further limited, to only apply to taking from an unoccupied dwelling at night; "larceny" -- a form of conversion requiring the carrying away of the goods). And, that doesn't even go into the various forms of fraud.

In any case, the notion that pirating IP is somehow a "new" concept pioneered in the law is blatantly false. There have been common law (i.e., non statutory) causes of action for patent and copyright infringement ever since the concepts were pioneered (i.e., before the Founders wrote it into the Constitution). Most, if not all, of the States (and the District of Columbia) have common law causes of action for IP violations -- meaning that you could repeal every federal criminal/civil enforcement penalty, and I could still sue you and win.

The whole whining about "it isn't theft" is just an excuse not to engage in an honest economic discussion about the merits of free ridership and the value of a free market. If you (not JB, but "you" copywhiners) don't like how much SonyBMG charges, then don't buy it. Just because you can't afford/don't want to pay the "Big Corporations" doesn't carry any moral or legal weight.

Now, the better (and more interesting) discussion is whether there are market failures that drive up prices -- i.e., whether competitioon is working as it is supposed to. That has nothing to do with IP, or the media industries that rely on IP, that has to do with how cosy our government has become with big business, and whether that cosiness has led to a slackening of the antitrust laws. On that point, I make no comment.

Posted by: Tobias at October 24, 2006 9:24 PM
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