Piracy is Progressive Taxation, and Other Thoughts on the Evolution of Online Distribution
Subject:   Foolishness
Date:   2002-12-13 11:08:17
From:   timoreilly
Response to: Foolishness

I agree very strongly with the belief that respecting the wishes of content creators is critical. I've written about this extensively in the free software context. (See My Definition of Freedom Zero.)

But I don't think it's right to equate what current file sharing users are doing to "stealing", for two reasons:

1. As Supreme Court Justice Harry Blackmun explained back in 1985, in Dowling v. the United States":

    It follows that interference with copyright does not easily equate with theft, conversion or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "Anyone who violates any of the exclusive rights of the copyright owner," that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, "is an infringer of the copyright."

In short, I'll grant you that my daughter is a copyright infringer, but not that she is a thief.

2. Just what are the boundaries of fair use? Someone has just bought a CD. Clearly, it's not right for them to manufacture and sell copies of the work. But it's clearly legitimate to copy it to another device (such as a tape, or a computer) for purposes of device-shifting. It's also legitimate to loan it to a friend. Where is the boundary between loaning it to a friend, who makes a copy so he or she can listen to it on another device, and copyright infringement? Is it OK if the person deletes the copy after they listen to it, and before they give it back? What if they just leave it on their hard disk and never listen to it again. What if they delete it but leave it in their computer's trash bin (so they still really have a copy)? Now imagine a CD that is commercially unavailable. Under the first sale doctrine, used works are still available, and all of the above can happen with absolutely no compensation to the artist. I could go on and on, creating more shades of grey.

We're in a period of great legal uncertainty, brought on by changes in technology. There was a time when it wasn't clear that it was legal to broadcast music over the radio; that was solved by compulsory licensing. There was a time when it wasn't clear if it was OK to make a videotape of a TV show for time-shifted viewing. Similarly, the internet creates problems (and opportunities) that we, as a society need to resolve.

Existing rights holders are lobbying for one solution (strong digital rights management, and criminalization of many activities that were formerly considered fair use.) Others (like myself) are arguing for policies that will expand the market.

Once their are legitimate alternatives, I will be the first to urge everyone to use them, and to eschew infringing copies. But I think it's the height of foolishness to try to criminalize your customer rather than giving her what she wants.