The Generational Divide in Copyright Morality

[Alatar]

This could probably equally go into Lasto, but I suppose its really a philosophical question. I won't make any comment on the article just yet. We can discuss after people have formed their own opinions!

The Generational Divide in Copyright Morality
By DAVID POGUE, Published: December 20, 2007

I've been doing a good deal of speaking recently. And in one of my talks, I tell an anecdote about a lesson I learned from my own readers.
It was early in 2005, and a little hackware program called PyMusique was making the rounds of the Internet. PyMusique was written for one reason only: to strip the copy protection off of songs from the iTunes music store.

The program's existence had triggered an online controversy about the pros, cons and implications of copy protection. But to me, there wasn't much gray area. "To me, it's obvious that PyMusique is designed to facilitate illegal song-swapping online," I wrote. And therefore, it's wrong to use it.

Readers fired back with an amazingly intelligent array of counterexamples: situations where duplicating a CD or DVD may be illegal, but isn't necessarily *wrong.* They led me down a garden path of exceptions, proving that what seemed so black-and-white to me is a spectrum of grays.

I was so impressed that I incorporated their examples into a little demonstration in this particular talk. I tell the audience: "I'm going to describe some scenarios to you. Raise your hand if you think what I'm describing is wrong."

Then I lead them down the same garden path:

"I borrow a CD from the library. Who thinks that's wrong?" (No hands go up.)

"I own a certain CD, but it got scratched. So I borrow the same CD from the library and rip it to my computer." (A couple of hands.)

"I have 2,000 vinyl records. So I borrow some of the same albums on CD from the library and rip those."

"I buy a DVD. But I'm worried about its longevity; I have a three-year-old. So I make a safety copy."

With each question, more hands go up; more people think what I'm describing is wrong.

Then I try another tack:

"I record a movie off of HBO using my DVD burner. Who thinks that's wrong?" (No hands go up. Of course not; time-shifting is not only morally O.K., it's actually legal.)

"I *meant* to record an HBO movie, but my recorder malfunctioned. But my buddy recorded it. Can I copy his DVD?" (A few hands.)

"I meant to record an HBO movie, but my recorder malfunctioned and I don't have a buddy who recorded it. So I rent the movie from Blockbuster and copy that." (More hands.)

And so on.

The exercise is intended, of course, to illustrate how many shades of wrongness there are, and how many different opinions. Almost always, there's a lot of murmuring, raised eyebrows and chuckling.

Recently, however, I spoke at a college. It was the first time I'd ever addressed an audience of 100 percent young people. And the demonstration bombed.

In an auditorium of 500, no matter how far my questions went down that garden path, maybe two hands went up. I just could not find a spot on the spectrum that would trigger these kids' morality alarm. They listened to each example, looking at me like I was nuts.

Finally, with mock exasperation, I said, "O.K., let's try one that's a little less complicated: You want a movie or an album. You don't want to pay for it. So you download it."

There it was: the bald-faced, worst-case example, without any nuance or mitigating factors whatsoever.

"Who thinks that might be wrong?"

Two hands out of 500.

Now, maybe there was some peer pressure involved; nobody wants to look like a goody-goody.

Maybe all this is obvious to you, and maybe you could have predicted it. But to see this vivid demonstration of the generational divide, in person, blew me away.

I don't pretend to know what the solution to the file-sharing issue is. (Although I'm increasingly convinced that copy protection isn't it.)

I do know, though, that the TV, movie and record companies' problems have only just begun. Right now, the customers who can't even *see* why file sharing might be wrong are still young. But 10, 20, 30 years from now, that crowd will be *everybody*. What will happen then?

[JewelSong]

Hm. Good topic, Alatar.

To me, the file-sharing issue and trying to prevent it is a bit like Prohibition was in the 1920s. Doomed.

The technology has progressed far too quickly. It's like locking the barn door after the horses have escaped.

I think that the "wrongness" or "rightness" of file-sharing has become basically moot. People are doing it; easily, happily and constantly. Legislation can attempt to slow it down, but its gonna be a losing battle.

As the 'net becomes more far-reaching and as it becomes even easier to share files of all kinds, there will have to be some kind of incentive or reason to purchase what can easily be had for free.

[Voronwë the Faithful]

I think you know where I stand on this, Al. But at the same time, I think Jewel is right; there is no way to get the toothpaste back in the tube.

[nerdanel]

The internal debate was solved for me when I became a member of the State Bar. My personal line at this point is as close to where copyright law/fair use say it should be as I can make it, though there are close calls (e.g. if a CD you bought scratches, and you copy it from a friend or the library.) In general, it's safe for me to say that I buy or legally rent all new media that I listen to at this point.

However, I don't think copyright law is the be all/end all arbiter of morality (especially since it can and does change.) Indeed, I think that copyright law frequently makes arbitrary distinctions between morally equivalent activities. So I think this is a useful conversation to have. I also believe that the industries involved should not only worry what the law says they are entitled to - but how to make the most economic sense out of the current reality.

[solicitr]

This mentality extends beyond music and video, as well. There are any number of people who openly advocate for (or engage in) posting e-texts of, FI, Tolkien's books, and claim that they have the absolute moral right to download and distribute them free, for all sorts of (to me) specious reasons: the Estate won't publish legal e-books so the fans DESERVE to have them; or JRRT is dead and his family are just parasites; or copyright law is an unconstitutional free-speech violation (never mind that the Constitution expressly provides for it); or (borrowed from the Napster debate) REAL artists create for the love of Art, not money (these people plainly don't know any working musicians).

[Alatar]

So, Solicitr, would you posit that one should not have a machine-searchable copy of a book they have purchased many times over?

[solicitr]

That becomes a very, very interesting question- and not the one I was addressing, which refers to mass Internet distribution.

Let's face it: the law remains fuzzy, ever since Sony v. Universal, as to exactly what the law is with regard to personal copies of things you already own. Timeshifting is explicitly in- hence Tivo. Copying an iTunes download from your computer to your iPod is expressly OK. Backup 'security' copies apparently are. I have no moral problem, and I don't *think* a legal one, with (some years back) making a cassette from your vinyl to play in the car, or just to save wear and tear on those grooves.

I think, at least ethically, that there's no problem with going to the effort to scan, yourself, a copy NOT for distribution simply to have it in an alternate form convenient to, say, e-search. But it may well not be legal.

However, what we're really talking about is the something-fer-nothing hacker-cracker mentality which just wants Free Stuff- electronic shoplifting.

[Frelga]

I think what confuses people on moral side of the piracy issue is that intangible nature of the product. If someone steals a pair of shoes from the store, the store doesn't have the shoes anymore and can't sell it to someone else, so they lose money. If someone downloads a movie, because for whatever reason they cant or don't want to pay for it, the company still can sell just as many copies of the legitimate product. I don't agree with this myself, but I can't articulate why.

The point about e-books is interesting. I often find myself searching for a quote, usually from Pratchett for some reason, he's just so quotable!, and whether I own the book or have borrowed it from the library, I can't always be buggered to hunt down the quote and retype it for the message board. Google Books to the rescue! Usually, they don't have complete scans of books under current copyright - many pages are missing, and copy-paste doesn't work (boo!), AND there are prominent links to Amazon and other places to buy the book, so the legal, moral and business feathers should all be soothed.

I also believe that the industries involved should not only worry what the law says they are entitled to - but how to make the most economic sense out of the current reality.

And that's an excellent point. What customers want is to see any movie, now, right away, and cheaply. The infrastructure is now in place to make it possible, but the business sense has not caught up with it. In trying to grab a slice of the pie, the media companies are missing the rest of the buffet, IMO.

The only time I've been tempted to seek out a pirated copy was to get my hands on the Hogfather DVD. It was on Amazon UK, but not on Amazon US. So, basically, there was a show I really wanted to see, and I couldn't do it legally, for no good business reason that I could discern, and by gum, I wasn't going to miss it. Before I could wrestle my conscience down, I found that it can be ordered from Borders in-store, and will be on Amazon in March so my law-abidedness was not compromised. But they better don't wait that long to distribute the Color of Magic in the U.S..

That's the example for you of a law-abiding citizen trying to get a product legally, at full price, and not being able to do it without at least breaking the DVD zone code.

[nerdanel]

I think what confuses people on moral side of the piracy issue is that intangible nature of the product. If someone steals a pair of shoes from the store, the store doesn't have the shoes anymore and can't sell it to someone else, so they lose money. If someone downloads a movie, because for whatever reason they cant or don't want to pay for it, the company still can sell just as many copies of the legitimate product. I don't agree with this myself, but I can't articulate why.

...because this reasoning is deeply spurious (as attractive as it is from a "thrifty" point of view.) Who "wants" to pay for things if they don't have to do so?

If A downloads a movie because A doesn't want to pay for it, the company can at most sell X-1 copies of the movie, where X is the amount that the company would have sold if A had bought her copy lawfully. That is, the company CANNOT sell as "just as many" copies of the legitimate product - they can't sell to A. The problem is when there are tens of millions of As (or more), all convinced that they have the "right" to free media on demand, all not wanting to pay, and who all believe they aren't hurting the company (or individual creator) who can "still sell just as many."

"But," A says, "I have no extra money to spend on movies, so I wouldn't have bought it anyway." Fair enough. But, now that A's downloaded the movie, when her friends come over, they'll just watch the downloaded copy. Otherwise, they might have gone out and rented it legally (for instance), for a fraction of the full purchase price. In the latter example, the copyright holder would still receive money. (Or, a friend or family member of A, who knows that A likes the movie but can't afford it, might give it to A as a birthday or holiday gift, again benefiting the copyright owner. Or, A might at some point receive a salary raise, and then go out and buy the movie. There are many ways that A might obtain this movie lawfully, even if she can't afford it at the present - but virtually all of them are not gonna happen if she has a high quality pirated version of the media and therefore doesn't "need" to spend money on it.)

The bottom line is, the copyright holder is entitled to compensation for EACH copy distributed as prescribed by the copyright laws. This is true even if you'll take it for free but would not pay for it. (And, Alatar, this may include distribution across formats. For instance, if you bought the latest Harry Potter book for $20, you are NOT entitled to, say, the CD recording of the book which is selling for $50. I know that's not exactly the point you were making, but it's a related one - people often state that if they have bought media in one format, they are entitled to access every version for no additional charge, which is also spurious.)

[Alatar]

The point is not whether I'm legally entitled to it. I'm not. However, if I have already bought the complete works of Dire Straits on Vinyl, should I have to buy it again on CD? I have three options if I want that music in my car.

1. Get my vinyl albums, connect to a recording source, encode to MP3 and either burn a CD or play it through an iPod
2. Download it from someone who's already done the transfer.
3. Buy another copy of Music I already paid the artist for, but this time on CD

Now sometimes, its worth buying again. Simply for the shiny case. Sometimes it isn't. But I would argue that there is no moral problem with me listening to music I already paid for.

Of course, the line gets much more blurred than that...

[River]

The hacker and cracker mentality extends beyond wanting something for nothing. The creed hackers and crackers live by is that information should be free - you should not have to pay for electronic data/resources. I'm not sure I fully agree with that, but that's the attitude and it has some nice ramifications. There's a growing movement in the science community to make .pdfs of journal articles freely available. The HHMI has gotten behind it and is pressuring its investigators to ONLY publish in journals that offer articles free online. The problem with that is the high impact journals aren't jumping on board and those are the ones people want their papers in. But we'll see how that falls out in the coming years. It'll be nice if they do. Not all universities in all countries have the money to spend on subscriptions the way American schools do.

There's also an element of "because we can" to these activities. You put up a wall and some smart-ass is going to try and get over it just to prove its possible. Look at the iPhone. Even though there's a hack out there to use it on any cell carrier, how many people are actually using that hack?

Before iTunes, I downloaded because I wanted the song but not the album. After iTunes, I began coughing up. I have also ripped a few CDs for my own use on my own iPod - I see this as akin to making tapes so you could listen to your music in your car back in the old days or have a back-up in case something happened to the original. I have my own beefs with iTunes and similar networks, but generally speaking I've found it to be a nice solution to my problem.

Now that I think about it, people used to record CDs onto tapes and give the copies to friends. They'd also record songs off the radio onto tapes. This isn't all that different from what's going on now, but no one got sued over it. I wonder why.

[Frelga]

For instance, if you bought the latest Harry Potter book for $20, you are NOT entitled to, say, the CD recording of the book which is selling for $50. I know that's not exactly the point you were making, but it's a related one - people often state that if they have bought media in one format, they are entitled to access every version for no additional charge, which is also spurious.)

But a CD recording of the book is very different. It's not just text - it's the actor's interpretation of the book, often with some musical arrangement added. It's a different product.

But if I already paid to own the text of the book in print, why can't I have the same text in electronic format?

[nerdanel]

Frelga and Alatar:

I think you’re entitled to translate the work that you have purchased from one format to another, by and large. That is, someone who buys a CD can put the songs into mp3 format and play them on their personal mp3 player. Someone who owns a record can translate the music onto cassette, CD, or mp3, using their own labor, etc. Someone who buys a book can scan into text for personal use.

To me, the only problem arises when people reason, “Well, I bought the record twenty years ago, so now I can go online and (illegally) download the CD version for free, because I’m entitled to the same media in multiple formats.” Well, great, but let’s say the CD is remastered. Someone put in the time and effort to enhance the CD quality, and that person (or their employer) isn’t getting compensated for the CD version because you (generic you) decided that you were “entitled” to have it for free. Same thing if you bought the book, and now believe you are entitled to download a released version of the e-book with the DRM ripped off. Again, the people involved with the translation of the media into the alternative form are not being compensated. OTOH, if you have your own e-book that you’ve typed or scanned, based on your purchased hard copy of the book, I see no issue with that.

Put what you’ve bought into whatever form you want for your own non-commercial, personal use, and odds are no one will care. But when you believe that a single purchase entitles you to (usually, electronically) access future or different versions of the work, where others have spent time and money to create that alternate version, that’s where the rights-holders sometimes start to get edgy, and the entitlement mentality starts to alienate some others.

[Primula Baggins]

Just to add a note, the rights to convert either of my novels into electronic format and sell it still belong to me, and until I sell those rights, someone who converts my book and distributes it is both denying me royalties and lessening the likelihood that anyone will be interested in buying those rights from me.

Someone who wants to search my deathless prose for occurrences of passive voice, say, is welcome to do the conversion for their own use; but once it's "out there" in electronic form, it tends to get away from the original converter, one way or another.

In the interests of full disclosure, let me admit that while I was sick a while back, a very kind friend from over the water sent me copies of the first season of a TV show I dearly love, which was not then available in North America in any form—there were no plans even to show it. And I watched them on my computer and enjoyed the heck out of them. So my lily-white principles are a bit stained.

I did buy the commercial DVDs as soon as they came out in this country. Fair is fair.

[Frelga]

Anything that hurts Prim is manifestly wrong.

Again, we are faced with the issue that the consumers want a certain product, now - in this case, an electronic version of the test. It is impossible to get it legally, but easy enough to produce (which may be legal for personal use), and distribute (which is definitely illegal and probably unethical).

In the interests of full disclosure, let me admit that while I was sick a while back, a very kind friend from over the water sent me copies of the first season of a TV show I dearly love, which was not then available in North America in any form—there were no plans even to show it. And I watched them on my computer and enjoyed the heck out of them. So my lily-white principles are a bit stained.

And, again - a product that is easy to obtain, but impossible to buy legally. You'd think distributors would wake up and smell the dollars.

[Alatar]

See, I'm far from lily-white. Far from it. I have in my time downloaded literally hundreds of gigabytes of illegal software, music, games and movies. I did it cause I didn't want to pay for them. There were no high moral reason or ethical imperatives.

I'm not saying it was right or legal.

However, I was part of the culture that resulted in simultaneous worldwide releases of movies, iTunes, Netflix, TiVO and hundreds of other advances that simply would not have happened except in response to the changing market cause by easy accessibility.

These days I buy most CDs, cause I dislike iTunes proprietary bull. I get most of my games from legal downloads through Steam. I still download TV and Movies, but this one is very morally grey, for the simple reason that I pay a subscription to Sky for TV and Movies. Ok, sometimes I get them a little earlier than I would have, but they all appear on my sky Box within about 3 months. Anything I want to see in the Cinema, I do. I hardly ever download a movie while its still in the cinema. On the other hand, I own multiple copies in multiple media of the material that I believe deserves permanent ownership. I must have 3 or 4 versions of the Godfather Trilogy, Star Wars, Blade Runner. Lets not even go into Lord of the Rings.

However, I do believe that the days when we had to wait 6 months to a year after the US release to see a movie in Ireland were ridiculous. The only reason that has changed is because people like me who bought VHS players that could playback NTSC video, followed by region free DVD-players, followed by downloads. The same will happen with TV Shows. If everyone in Ireland has downloaded the latest Galactica 3 months before it airs here, Sky are gonna refuse to pay for it. Hence, the market will pressure distributors into simultaneaous worldwide releases.

I honestly believe that within 10 years we will have a total pay-per-view solution for TV. All programmes will be $1 or less, with reruns and dreck going for far less, possibly free. They will be on-demand, streamed at your convenience. We're already halfway there. That is being driven by piracy.

I feel badly for people who will lose out on royalties because of piracy, but I do believe that in the long run it will work better for everyone. Books will be simultaneously published in paperback and ebook. It won't be worth stealing it, cause its less hassle to buy it.

There will always be people who download stuff for free. They're the same people who taped vinyl records, or copied VHS tapes. That market will never disappear. But hopefully it will continue to drive the industry forward.

[nerdanel]

But hopefully it will continue to drive the industry forward.

Well said. Which is not to say that the culture you describe is moral (and I don't mean to suggest that I was immune to it in my college days - though I think most of us had sobered up by law school.) But it can indeed have some very positive ramifications for the availability of media, and can even lead to the rightsholders making more money where they correctly perceive and capitalize on actual demand (as indicated by what media people are acquiring, lawfully or not.) You get no argument from me on that point.

[solicitr]

It's of course the ease of digital reproduction and distribution that makes things so different, and litigious, than they were back in the Analog Age. If you taped a song off the radio it was a crappy recording; if you taped it from an LP it was better quality; but in eitther case it took the whole runtime of the album to make that single copy; and then if you wanted to give it to someone you had to take that single physical copy over to his house. If you had two friends, that meant doing it all twice. Low-volume enough for the industry to ignore.

Whereas today one can rip a CD and post it for millions of downloads worldwide in a matter of seconds. Whole 'nother world.

The reason so many authors/publishers are opposed to selling legal e-texts is because, inevitably, there would shortly thereafter be millions of illegal e-texts out there.

[Primula Baggins]

Yet those rights are sold, and fairly often. I wouldn't mind selling them myself <kicks agent>.

Some writers put entire works up for free download, and some have had the experience that sales of their hard copies go up after they do that. I'm inclined to think that e-copies and hard copies aren't in competition. Someone who likes real books in hand may read a pirated e-version, but if they ever would have bought the physical book, they'll buy it; for them the file is not a substitute, just a test drive.

I would like to see a model where the amount paid for an e-book is low enough to seem trivial, but where the money is split between author and publisher in a genuinely fair way. On paperback hard copies writers get 6% to 8% of cover price (low end for beginners). But a lot of expense and materials go into creating even paperbacks.

On electronic copies I think the compensation for the author should be the same in dollar terms (or in my case, cents terms )—it is my creative work I sold to the publisher, not a stack of paper, and I should be compensated the same way every time my work is sold, in no matter what form.

But the publisher's compensation should reflect the publisher's actual cost, which is much, much less for an e-book than for a printed one, and the price of the download should be accordingly much less.

If an e-book costs $1 or $1.99, many more people will pay for it. There is no reason a e-book should cost almost as much as a hardcover, and yet many do. That does not justify stealing the files, but it certainly encourages it, people being human and all.

[solicitr]

If an e-book costs $1 or $1.99, many more people will pay for it. There is no reason a e-book should cost almost as much as a hardcover, and yet many do. That does not justify stealing the files, but it certainly encourages it, people being human and all.

That much is true. While I excoriate music piracy, it would be foolish not to acknowledge that the recording industry has in part brought it on themselves, by the truly outrageous profit margin they build into a CD's price. Less than a buck to make, about two bits in royalties to the artist, a few pennies in amortized production costs. The rest is just marketing and bottom line.