Sunday, January 22, 2012

Some Thoughts on Copyright

Note: this is a long article. A lot of folks will just say "TL;DNR" and move on. Frankly, I don't care if you read it or not. It needed to be said, and in one place. If you like any part of it and want to pass on the thought, fine. It's licensed under Creative Commons, Non-Commercial, Attribution. Leave a comment to request any other use.

The RIAA, the MPAA, and other "industry associations" such as the BSA describe copyright infringement as "theft", "piracy", "plagiarism", and describe it as destructive of the original author's work. This applies to music, motion pictures, books, articles and news stories, and software.
"It’s commonly known as “piracy,” but that’s too benign of a term to adequately describe the toll that music theft takes on the enormous cast of industry players working behind the scenes to bring music to your ears. That cast includes songwriters, recording artists, audio engineers, computer technicians, talent scouts and marketing specialists, producers, publishers and countless others."
At best this is hyperbole, and at worst an outright lie. So let's look at those claims.
  • Is it theft?
  • Is it piracy?
  • Is it plagiarism?
  • Is it destructive of the original author's work?

Is Copying theft?

No. Nina Paley (of has illustrated this clearly with a simple one-minute animation:

Kindly note that this video does NOT state that copyright infringement is OK. If you interpret that to be the message, then you don't understand the issue at all. Keep reading. The message is quite clearly, copying is not theft. And it's not.

Copyright infringement is clearly distinct from theft. Furthermore, only some copying is copyright infringement. Here are some cases where it's not.

There is no infringement when the work is fairly used. Title 17 U.S.C. Section 107 allows Fair Use for a number of reasons, including commentary, parody, educational purposes, and citation.

There is a vast body of work in the Public Domain. These ideas have no owner, as their copyright has lapsed (or never existed). Included in these are the Grimm Fairy Tales upon which Walt Disney based his vast entertainment empire. Snow White, Cinderella, Sleeping Beauty... every single one of these were re-tellings of stories that were written by other people.

Likewise, there is a vast body of work that is in the Creative Commons. This means that the authors have explicitly allowed their use for exactly the purposes that the RIAA and the MPAA would claim are destructive. Why would an author do that? Because free play increases sales, despite what the RIAA say. More about that in a bit. The plain fact is that copying Creative Commons works is not and by definition cannot be theft.

But what about what the RIAA says about taking money from the songwriters and engineers, etc.? Doesn't copyright infringement have the same end effect as theft? Isn't it stealing from them?

No, it's not. My opinion is that it is the RIAA that is stealing from them. Follow the links in this previous post to see exactly how they do it. It's not my opinion alone. Courtney Love famously "Did the math" in this Salon article.  Film studios engage in similar "creative accounting" that asserts that the Harry Potter films have lost money, and ensures that any deal involving net profits is a sucker bet.

Is Copying Piracy?

Not in any of the senses where it's not theft.

The RIAA, et al. use the term "piracy" in order to evoke its common meaning, that of "robbery or criminal violence at sea". As we've already seen, it's not theft (robbery). That leaves violence. Nope, not piracy. Case closed.

Or it would be if this weren't common usage. The usage goes back to 1603, for copyright infringement. Just don't imagine black flags and cutlasses, and remember that mere copying -- minus infringement -- is not piracy.

Is Copying Plagiarism?

No. Plagiarism is passing off someone else's work as your own. Neither verbatim copying nor copyright infringement meet this description. In academia it's pretty clear: copying without attribution is plagiarism; copying with attribution is a citation. Plagiarism is forbidden; citations are required. Those who advocate Open Source software and Creative Commons works are very careful to promote proper and grateful attribution of the works that enrich the Creative Commons.

Here's an example, again by Nina Paley:

I can't stress enough that the Creative Commons community is intensely respectful of copyright. The purest expression of that deep respect is to say to someone, "if you will not share then I will not steal your product. I will not buy it, either. I will not read it in the library. I will grant you the anonymity you have demanded, and deserve. Instead, I will support independent artists, authors, and musicians."  Commercial copyright holders do their best to promote piracy by instilling a strong desire to obtain products that are over-priced. It is through exercise of will and conviction, and not by any assistance from the commercial interests, that the Creative Commons community respects their rights.

Not that the commercial interests are too concerned with returning the favor. It is a solid iron-clad fact that the Creative Commons community depend on copyright law to keep commercial ventures from stealing from humanity and claiming ownership of and profiteering from things that were not written by the corporations. Commercial interests that do not understand the difference between this and public domain often fall foul of their own rules.  Examples:

Outside the realm of software, the RIAA claims that they have "the right" to collect "royalties" for Internet radio use of music for nonmembers as well as members, even when no royalties are due, as in the case of Creative Commons. I am one of those nonmember composers. My songs, poor though they may be, have been repeatedly played on Internet Radio. This is not theft. Royalties are not due. And the RIAA and SoundExchange have no right whatsoever to steal from anyone who plays my songs. And what they would like to do isn't something that can merely be "considered theft"... in my view, it IS theft, and it IS plagiarism when the RIAA claims ownership over that which they did not write and for which no rights were transferred to them by the legitimate owner. Is it possible that this practice makes the RIAA the single biggest copyright infringer on this planet? Think about it.

Is Copying Destructive?

I'm going to refer you back to Nina's video. Really.

It's obvious that the original remains unchanged. In the case of re-mixing and derivative works, the worst you can say is that the original author doesn't like the changes. That's pretty much ALWAYS the case, even with licensed works. Alan Moore won't even look at what Hollywood did to The Watchmen. And I'm pretty sure that if Hans Christian Andersen were alive he'd look down his nose at the mess Disney made of his Little Mermaid.

What is Copying, then?

Copying is exactly what it says... making a copy. If you're looking for illegality, sorry to disappoint.

Copyright infringement is the violation of a specific set of laws dealing with the temporary grant of exclusivity to the works of certain authors. It is illegal, and there are certain penalties for infringing. However, infringement is not robbery, it is not violence, and as we've seen, shady accounting allows record labels to appropriate far more from artists than they pretend to save through "championship". When stripped of hyperbole the urgency disappears. That's why the hyperbole is used.

Some History About Infringement, and Other Thoughts...

Public domain is the "natural state" of any intellectual work. Intellectual works are simply ideas, and once communicated, they are incapable of being retracted, unlike physical property. This is a very basic logical fact, very well understood until very recently. The freedom of information was held in such high regard in ancient Egypt that Ptolemy ordered that visiting ships be searched for books that were copied by scribes. The originals were returned to their owners, and the copies placed in the Library of Alexandria. Throughout history it was the common practice of monks to exchange books between monasteries so that they might be copies, shared, and disseminated.

Only recently, through misinformation, has this attitude changed. But the truth remains: you have no natural right to control the use of an idea that you have communicated to another person. Go back and read that again, because it's a very fundamental fact of life. You have no right to control what another person, of free will, does with information that is in his possession. Merely thinking a thought does not make you a slavemaster. If you wanted to control the information entirely, then you should have kept it to yourself. This is known as a trade secret. Trade secrets are commonplace.

Learning from their environment is what humans do. It's what makes us human. Using what we've learned is not theft. Not now, not ever. However, our founding fathers were aware of a paradox: information is only valuable to society as long as it is shared; but when shared it loses value to the originator that his monopoly would have granted him. In other words, most processes would be trade secrets if the inventor were not given some incentive to share them for the larger benefit of society. So the U.S. Constitution states in Article 1, Section 8, Clause 8 that one of the powers of Congress is:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
There are three important concepts here:
  1. The intent is to promote the progress of science and the useful arts.
  2. Congress grants this right (it is not a natural right),
  3. It is granted only for a limited time
Note particularly hat if a copyright law does not promote progress, it's not working as intended; If it asserts that there is such a thing as "intellectual property" to which someone can claim ownership other than as granted by in accordance with the Constitution, then it is wrong; and that if it has permanence, it is unconstitutional.

Congress originally granted a limited term of 28 years to copyright as a compromise to the the natural state of not existing at all. Today the law is so perverted that the default copyright for an individual work is the entire lifetime of the author + 70 years. For all intents and purposes, this is unlimited... for anything I write, it's my entire lifetime, plus another 70 years. There are plenty who would play word games with the Constitution and declare that "forever less one day" satisfies the Constitution. Really. 
"Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.
So not only can they not do proper accounting, they also can't do proper math. To them, infinity minus one is less than infinity.

The RIAA uses their perverted notion of copyright to ensure that a controlled work is not "stolen" into the Public Domain... not even by copyright expiration if possible.

Nevertheless, the recording industry has release works for free since before the RIAA existed, and continues to do so today. They do it through radio, through licensing to clubs, and through television outlets like VH1.

If they did not do this, then no one would know the songs existed. People have always bought records because they heard the song for free from somewhere else. Before radio, "song pluggers" were employed by stores to play the sheet music so customers could get a free preview. The music industry claimed that radio would kill music sales because no one would need to buy music. They were wrong. When tape recorders were invented, the music industry claimed that it would kill song sales. They were wrong. Likewise, the MPAA declared that VCRs would kill cinema attendance. They were wrong, too. They have always been wrong, and continue to be wrong with regard to file sharing, according to an independent study. At least they're consistent.

The same core impetus for music sales remains unchanged... getting it out there so people can hear it, for free, without risk. If they like it, they'll buy it. Not everybody who likes it will buy it; but then again, that has never happened historically either. The recording industry would like to charge you for every listen of every song, and declare radio to be piracy, even though they have been known to pay radio stations to play their songs, thus inflating record sales. They make ridiculous demands because they can... at least they could. They're finding it harder to make their case.

Album sales have plummeted. But the reason is obvious to anyone who actually buys music. We bought albums because we pretty much had to. When vinyl singles were sold, they were incredibly popular at about a buck a disk. But singles disappeared with the advent of cassette and CD, because they weren't cost effective. Digital outlets like iTunes restored the supply of what people actually wanted... the single. No more did you have to buy 11 songs you didn't want to get the one you did. And revenues dropped accordingly, because you're now paying 99 cents for the single instead of $12.99 for the album you didn't want.

For that matter, no more do you have to buy music at all. For many years, the recording industry perpetuated a fiction that decent music was produced by only a smattering of people with Big Resources and Big Talent, and you could only get it through the Big Labels. Fiction indeed. There are plenty more artists where they came from, and with the technology available today, nobody needs to go through the big record labels. Not artists; not consumers. As a result, nobody with a brain wants to work for the big labels, and the talent they've offered as steadily declined as a result.

Many talented artists like Jonathan Coulton have begun to publish independently, and have found that they can make a living at it.  He publishes music for free, and people like it and give him money in return. Do they have to? No. But against everything the RIAA et al. will tell you, they do.

The same holds true for books. Authors like Corey Doctorow come to mind.

Likewise for software. Linus Torvalds, the author of the immensely popular Linux operating system, gives the software away. He'll never reach Bill Gates' net worth, but he's making $10 million a year, with a net worth of $150 million.

The Creative Commons is a way for artists to ensure that for the length of copyright a work cannot be "stolen" from the Public Domain. The author retains his copyright, but grants a license so that the work can be freely copied only so long as you agree to do likewise.

So forget piracy. Adopt the Zen philosophy of not desiring that which you cannot have, and allow the RIAA to fall kicking and screaming into the abyss. Stick with Creative Commons and copy with impunity.