There seems to be some gross misconceptions running throughout this thread, in regards to legislation covering IP (Intellectual Property).
First and foremost, intellectual property is clearly defined in most nations and treated separately (albeit only slightly so) from physical property. This is PRECISELY the reason that, for example, in the United States, legislation such as the DMCA and NET Act exist (although the NET act is mostly about closing the “not-for-profit” piracy loophole). When you take this into consideration, it seems clear that even the legal system - in the US and nations with similar approaches - however flawed in its dealings with IP, takes into consideration the distinction between theft of a physical product, and "infringement” of copyrighted works. They are not one and the same. They are separate, although similar, issues. When you are charged with breaking the law in regards to copyright, you’re charged with a different crime than you would be than if you stole a car.
Of course when you purchase a product, even a physical product, you are merely licensing it. You have a copy; the IP owner retains the rights to any content contained within that copy. This is why physical media is referred to as, well, media. It’s simply a means of delivery.
Second, some of you appear to be completely unfamiliar with the fact that while there is legislation in place to protect IP owners (copyright holders), and while they deserve compensation for their offerings, there are also statutes that apply to CONSUMERS in regards to intellectual property. In many cases, these laws fall under the same acts, but this is not always the case. They are meant to protect consumers.
For example, in many countries it is perfectly LEGAL to return a CD or CD-ROM simply because the content within did not live up to one’s expectations. Not every person on this planet is restricted by thoughtless laws that state “even if I’m dissatisfied by what I’ve spent my money on, I’m stuck with it”. Personally, I CAN INDEED return an album for a different one, at least where I live. This interpretation of everything under one system is, for the most part, an American phenomenon, and too often when intellectual property rights are discussed, we forget that America does not hold jurisdiction over the world.
Unfortunately, the US Government likes to think it does. Ask Syklarov and Elcomsoft about that one.
Back to legislation protecting the rights of consumers. While my aforementioned example of returning a CD due to dissatisfaction, for a DIFFERENT album, may not be a universal one, nearly every western (European, North America, western in the “historical” context) nation provides for Fair Use rights. Yet this legislation, despite having been passed into law, is often ignored by Intellectual Property Holders, who in turn infringe upon on the rights of consumers.
What this brings us to is the question of WHY people are ever more frequently committing “piracy”. I’m going to be somewhat general here, as there are dozens of reasons one might choose to “pirate” a copyrighted work over licensing it legally.
A) To avoid paying for products they wish to possess
B) To evaluate the product before purchasing it
C) To enable the fair use rights provided to them under the law (in this category, you licensed the work, but are still considered a pirate under short-sighted laws)
The first is clearly criminal. The action and INTENT are both present. You know, those two things required in court, for the most part, to convict someone of a crime? It’s greed. Even worse are those who profit from it. I can accept a starving student arguement in some cases, but not the starving student who sells CDs from his dorm room.
The second situation is somewhat of a gray area. There’s a simple reason as to why. The action is present, but the intent is not. The consumer WANTS to buy the product. However, he cannot make a sound purchase without first examining it.
Consumers are, in general, protected from poor quality products via several outlets: For one, the ability to learn about a product, and its limitations, beforehand – for example, through reviews (for general products, Consumer’s guides, for music/movies, Rolling Stone, Spin, whatever). Or by having the product examined by an expert (not in the case of music, unless you consider yourself an expert, but you should get the idea). If I’m to buy a car, I can take it to my mechanic and have him look it over. I can also check some car buyer’s guides and generally get an honest opinion. Finally, in most cases, consumers can also return an unsatisfactory or faulty product. This process is not thrown aside merely because with software, music, and movies, one is licensing rather than purchasing the product. You still have the right, even though you do not own software (I’m going to rely on software for my example at this point) but instead license it, to be protected from shoddy programs.
Before anyone argues EULA’s, the license that says “By having opened this box, you have automatically agreed to everything we say, even if your CPU explodes in the next ten seconds” is rarely recognized by the courts. Some EULA’s have weaseled their way through the system, most have not. Yet.
Unfortunately, certain industries, most notably the software industry, have put the kibosh on the whole concept of the consumer being entitled to a fair idea of how a product will perform. With software, I can’t look under the hood – doing so has become increasingly risky due to the legalities of circumventing copyright protection. Additionally, Joe Consumer has neither the technical know-how nor the time or tools to perform such actions. What they are limited to are trials for products which may or may not be available, and may or may not represent the finished product received when fully licensed. I hate going back to this car argument, but I can borrow a friend’s car and take it for a test drive. I can be the only one in the car. I can drive it on the roads I choose. I can lend him my car in exchange, so he has something to drive. But I’d be, technically, breaking the law in many cases if I was to test drive a program belonging to a friend on my own system. Even if he wasn’t using it at the time, many products license per machine. And if the software is restricted by something like FlexLM (i.e. a high-end graphics or CAD package that, say, a student might wish to try out as its used in his or her field of study)? Heck, now even if I buy a new machine and wish to transfer my legitimate license, it’s going to cost me money – at least in the sense that it’s going to take time, and I believe someone once proved that time == money. 
Additionally, the issue of written reviews, in regards to software, and increasingly in regards to the music and movie industries, has become tainted with scandal (read: non-existent movie reviewers made up by studios). Back to my software example, if you’re in the software industry, you know two things: One is that the number of forums for reviews of applications outside of major software packages such as those presented by Microsoft, Adobe, Macromedia, Corel, etc., is extremely limited. Public knowledge of these forums is extremely low – where does a consumer go if he or she wants an HONEST, UNBIASED opinion of a program? One not found in the local free computer paper, major websites, or PC mags, all of which stick to popular programs and do not go in-depth for the most part? What about niche markets, where consumers have even fewer options? Ever try finding a review site for CMMS/Facility Management software? You have maybe two options online, at least that are decent.
The second thing you understand, if in the industry, is the SELLING OUT of journalists and magazines. This is why I emphasized the words “honest” and “unbiased”. In the field of PC Games especially, magazines survive by getting ADVANCED REVIEWS of high-profile upcoming titles. The magazine that gets it first, that gets the most first, retains the readership. However, game developers frequently blacklist publications that give their products poor reviews. The result is an apologetic climate in which many games are overly hyped right up until they hit stores – at which time consumers can see the truth for themselves. The problem here is that many consumers pre-order games (a method of sales that game distributors absolutely LOVE), based upon the “more hype than actual review” articles put out by those sources that the developers have given the permission to do so.
Now I’ve stated that this is a gray area because only the action, in most cases, of a crime has taken place. There is no intent. The person who honestly wants to buy the program but wants to try it first is NOT, as Wring insisted earlier, a criminal, in my view; he’s a conscientious consumer.
This brings us to the third point.
Fair. Use. Rights.
Why these continue to be ignored is completely beyond me.
In the case of Audio CD’s, movies (DVD/VHS) and Software, you have to right to media shift and backup any software you legally own (meaning you’re entitled to, usually, one backup copy, and can shift to other media. In the case of music you are entitled to media shift to different formats to play in a car or on a CPU, for example). You have this right if you live in the United States. You have it if you live in Canada. Read the Canadian Copyright Act, if you live in the latter.
In the case of television, you have a right to time shift (record for playback at a later time). And despite Jamie Kellner’s argument that viewers have a contract and MUST watch commercials, they do not. Feel free to change the channel, fast-forward, or time-shift.
These rights sound reasonable, and if you own the product in question, you’re not a pirate, correct?
Wrong. In order for me to back up most of my games and software, I need to break the law. I need to download an illegal “crack” for the copyright protection in order to make a copy of the game I am entitled to by law. I need to find an emulator for the hardware dongle – because, since the dongle is an integral part of the program (needed to run) and in some cases performs calculations, it should be included under the backup clause.
Piracy now stops being a matter of monetary value. It becomes a matter of an individual’s rights as a consumer. DVDs are region encoded and protected with Macrovision to prevent copying, as are most new VHS tapes these days. Audio CD’s are being protected so that the quality of copies degrades (at the least) or so that they cannot be copied at all. Thus in order to convert my legally purchased CD to MP3 to play on my CPU (since it may no longer play in my CPU do to copyright protection that could physically damage my CD-ROM drive), I have to download from Morpheus or WinMX or some other channel. The IP holder has just turned me into a criminal, by ignoring my legislated rights.
In this example of “piracy”, there’s neither a criminal action nor the intent to commit one. At least not on the part of the legal copyright holder downloading the material. On the part of the person providing the material, now you’re looking at his motives. And someone could very easily make a GOOD FAITH argument in this regard, stating they were providing the material in “good faith” for legitimate users of the CD/Movie/Software in question.
The end result? Some forms of piracy are detrimental to various parties, not all. Not all forms of piracy are illegal (or at the very least, they are not immoral). IP issues have been hijacked by parties with a purely financial interest, leaving consumers bent over a barrel - and it many cases, back extra to be screwed in such a fashion.
Various tidbits:
Wring, music labels and the RIAA fought very hard against allowing CD’s to be played in stores. Those kiosks you keep mentioning, where it’s nice and legal to preview a CD in advance? They attempted to outlaw them.
In Canada and several other nations, there is a tax on all blank media, including CD’s, the funds of which go straight to the pockets of the RIAA and similar organizations.
Companies like Adobe (Adobe did this nearly word for word) have told me that I need to pay to receive a backup of the product I’ve purchased (licensed) from them, regardless of Fair Use Rights. My rights do not matter to them. When I asked what would happen if I got a copy on my own (off the net or from a friend), I was informed I’d be breaking the law. To get a backup entitled to me WITHOUT CHARGE by law, I must either pay – or commit an infraction against a different piece of legislation.
I happen to take the Socratic approach to all of this, and personally I’m in favor of MP3’s and other media trading in the “try-before-you-buy” context, but I’m aware it can be interpreted in numerous ways. Not everyone will be honest about it - but then, go after those people who are NOT honest about it. It’s not that difficult to figure out who. Specifically, those selling CDs at markets, counterfit CDs, etc - nail them. We don’t need John Ascroft setting his sites on a bunch of file traders (read today’s news, folks).
I believe it was Jack Valenti who recently said “anyone arguing in favor of fair use is a criminal” or something thereof, but I don’t have the quote. Would love if someone could find it. In either case, call me a criminal - I want to stand up for my rights.
http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=198
http://research.yale.edu/lawmeme/