Mother 3: When is Piracy Justified?

Great Debates
41

Property is not a natural subject. By nature, our “property” is the same property animals have- basically whatever we are holding or occupying and can defend by force.

As a society we’ve decided for a more complex idea of property, and together we have set up all kinds of organizations, from the county assessor’s office to the army, to make that happen.

But still, there are many things we have either decided cannot be owned, for the sake of the common good, or that simply defy ownership by their nature. We can also own all kinds of things that don’t really exist.

By our own rules we can’t own other people. We can’t sell our organs. We have somewhat limited rights to our land. We can’t own some objects- such as nuclear missiles or buckets of lead paint. Sovereignty gets weird, but in general you can’t own a country. You can’t own the moon or Antarctica or the deep ocean.

By nature we can’t own things like colors, spirituality, numbers, raw concepts, flocks of migrating birds, the air, facts, recipes, etc. There are some things that defy any attempt to control them.

Things we own that are made up include money, stocks, companies, carbon futures, contracts, liquor licenses, etc.

Intellectual property runs somewhere in between all three of these. I think it is an intangible that to some degree is uncontrollable. You can’t keep people from singing your song in the shower. You can’t keep them from wacking off to fantasies of your characters screwing. You can’t keep them from imagining and re imagining your stuff. And you can’t keep your stuff out of their stuff. If intellectual property didn’t build on it’s predecessors we’d all still be reading Beowulf and playing Pong.

So no, owning it isn’t particularly natural. As is made clear by the fact that the concept of intellectual property was pretty much non-existent through all of human history. Indeed, we have to put up all kinds of constructions to make control of intellectual property even somewhat possible, and those don’t work well since they go against the very nature of information.

As a society we have agreed that these structures are useful when it comes to “promoting the production of the useful arts.” If we want to talk about some kind of “natural right” to one’s work, that is antoher story and one we will need to work out as a society.

42

I don’t think it’s a particularly good thing to have a system where rights are arbitrarily taken away, once granted - in fact, I think an argument could be made that such a system would itself be detrimental to the spirit of creativity in the arts and sciences.

I despise argument by analogy (for someone will always point out the differences - which by definition must always be present, rather than address the similarities that are drawn), so the following analogy is not an argument, rather, it’s just an illustration of my view on the matter:

Suppose I am the sole keeper of two pieces of information, that I keep secret:
-Zombies can be stopped by cutting off the head or destroying the brain
-Peanut butter, combined with fruit preserve and placed between two slices of bread, is a pleasing snack

Either of these items of knowledge I can share without personal loss - I still know them, even after I tell them - and if someone sneaks into my bedroom and reads them out of my diary, they do not deprive me of anything.

When the moaning undead hordes advance on humanity, to feast upon their brains and I withhold the first secret, I am acting immorally, because people will suffer tangible harm. IMO, it is justifiable to obtain the secret against my will.

When the king of Sweden wants to know what was in the sandwich I served him last week and I withhold the second secret, I’m just being a dick, at worst.

I believe that the non-expression of an idea is generally as artistically valid as its expression - and that deciding when, where and whether a work will be distributed is part and parcel of its creation. Insisting that it can be wrest from the artist where withheld is similar (IMO) to insisting that parts of a canvas must not be left blank.

43

I agree with most of your post, and think it’s very well reasoned and clear, but I must take exception to this part.

This is actually a rather unique American construct, which grants powers to Congress to institute copyright, stating that the aim is “to promote the Progress of Science and useful Arts”. I personally don’t see why this is so often read as “to protect copyright only where it is of the greatest benefit to society”, but I’m sure we can strike a balance somewhere.

I also don’t agree with the idea that the fruit of my labour as an author (in general) is only protected when society is benefited. As you imply, Europe generally doesn’t think that way.

While I agree with the fact that the nature of a copyrighted work, in today’s computerised society, means that it’s very hard to protect my work, by itself that means nothing. Your rights in anything are not determined by how easy it is to infringe those rights. Because it’s easy to take candy from a baby doesn’t mean it’s amoral to do so.

44

Analogies are obviously an inexact comparison, but my point was that the analogy was not even conceptually similar in the way required to support the argument, and I backed my point up with examples.

In any case, if XWalrus2’s actions were so obviously immoral, why is it necessary to try to equivocate his actions to other crimes?

45

My big copyright dilemma is this- “Happy Birthday”. I grew up with every birthday being celebrated with the song “Happy Birthday”. So did nearly every American alive today. It is maybe the most recognizable song in the world and it is a fundamental part of American culture. It would be impossible to depict an American birthday without this song.

The copyright to “Happy Birthday” is held by AOL. A portion of that money goes to the nephew of one of the women who wrote it. It will remain that way until at least 2030. The last surviving writer of “Happy Birthday” passed away in the 40’s (when my grandmother was a child).

Even though the song was written in 1893 by people who are long dead, this song is under copyright. I am a film maker. If I want to make a film with an American birthday in it, I have to send AOL a check. If I can’t afford that, well I either have to make up a fake birthday song (which anyone watching the movie will know is fake) or just do without. I cannot effectively make a movie with an American birthday scene.

This is the point where I say “screw that.” You are making it harder for me to create new work, sot hat the grand-grand nephew of someone long dead can make some pocket change off something that is as American as apple pie. This is the point where the rights of the author have long since faded. The nephew of the women who wrote “Happy Birthday” can go out and write his own song, or get a job, or otherwise contribute to society- just like I, as a film maker, am.

Well, it’s more like you give sandwiches to everyone in Sweden and they all like it. But then you demand permanent control of sandwich making worldwide. And for whatever reason you decide you will never, ever, sell sandwiches in Wisconsin. And then you get all pissed when people from Wisconsin start smuggling in sandwiches or putting their own stuff on bread and enjoying it.

46

I used to agree with this point, but I’ve had a hard time actually figuring out why I felt this way. I could come up with no realistic defense. While you despise analogies, I can tell you that one particular analogy made me rethink this aspect of copyright. When I buy a product, I feel it is no business of the manufacturer to tell me what to do with it. I’m not renting the product, I’m buying it. Intel doesn’t tell you what code to run on your computer. Microchip doesn’t dictate to its customers what PortA is going to control. Freedom is a feature, not a bug.

So I’ve become much more ambivalent about this aspect of copyright. To the extent that enforcing it promotes more creation, I’m for it, but this is not to say that we aren’t losing something else in the process. When the cost of reproduction is very low, the economics of the situation suggest to me that people will break the law. A person with a copyright is a monopoly pricing far above the marginal cost of production. Far, far above it. Even iTune’s $0.99 pricing is far above the margin. So when I say, “Yeah, a creator should be able to dictate what people do with her creative work,” and I write a law (or support a law already written) to do that in practice, I also have to find some way to justify what happens in practice in terms of pricing. And… I can’t. As soon as the question becomes what’s practical, piracy is practical, at that price. We’re being ripped off. We’ve always been ripped off.[sup]*[/sup] Now broadly available technology has taken off everyone’s mask.

So now it is up to Microsoft to attempt to lock up the XBox, to expend energy to create proprietary systems, for Sony to install rootkits on people’s computer without their permission, to fight their own would-be customers. Yes, pirates are would-be customers. Has anyone claimed that there is no price which would discourage piracy? Pirates may be immoral, but are they stupid? The system will come crashing down when the cost of fighting piracy is more than they would make by pricing it fairly in the first place, and the moral argument–if it were ever relevant–would become moot.

*[sub][sup]Actually, mass market printed material is priced very fairly to me. I’m thinking of textbooks, movies, and video games.[/sup][/sub]

47

Trouble with that is that it’s back to tangible products rather than concepts again - and I was trying very hard to avoid that in my analogy, because that’s the difference on which they are usually picked apart.

48

I’d be interested to know if you feel the same way about patents - and if not, what are the differentiating factors.

As far as I can tell (and this is a generalisation, to which there are undoubtedly exceptions), most of the people wanting copyright and content protection weakened are end users and most of the people wanting it upheld are content creators.

Personally, I can sympathise with both camps - I know I’ve found abandonware frustrating, I know I consider DRM to be generally heavy-handed and excessively restrictive.
So as a customer, I do find myself thinking “Yeah, I paid for this, why the hell shouldn’t I be free to do what I want with it?”

On the other hand, I’ve also produced copyright content, then seen it misappropriated and passed off as someone else’s work - and this was not only a personal affront, but it also cost me money, as it diverted a chunk of my audience away from the channels for which I got paid.
So as a producer, I do find myself thinking “Dammit, I worked hard to create this, why the hell shouldn’t I be able to control how it rewards me?”

49

Mangetout, I do feel the patent system is kind of broken, and for similar reasons. But, let it be said, I definitely agree with you, I sympathize with both sides. It would be a sorry state of affairs if there were no patents and no copyright. Everything would return to trade secrets on one front, and on the other, well, I admit there is little desire to become a huge hit when Joe Fanfic can publish your book as well as anyone, complete with transcription errors and a few tasteful edits. To the extent these things serve a useful purpose, I totally support them. And if you asked me how to fix it, I have no idea at all. What we have might just be the best we can do. But between Disney and big pharma tweaking both systems for their liking to extract economic rent, I have to say something has probably gone wrong, and horribly so.

50

I think one way to tackle it is open source. The open source movement in software is really starting to get interesting and powerful - the same thing could (and probably will) happen in other arts - not that everything needs to be that way, just enough of it to loosen the stranglehold of the big, abusive players.

51

Perhaps you missed it, but my answer was

I’m not comparing it to another crime. I’m comparing it to the sense of loss of control over something which you own, even if this loss of control does not affect you economically, or potentially at all. This is the crux of the morality of ownership - the ability to arbitarily exclude people from your property, without regard to any economic benefit or detriment.
To put it another way, if I offered you a million dollars for your hair clippings, you could accept, or you could refuse. It doesn’t cost you anything to reproduce your hair, but nevertheless we accept that as persons, we own our bodies and have the right to decide whether or not we want to sell or distribute the things we own. If you refuse, you might be acting in an economically irrational manner, but you have the right to do so. Nobody demands that you have no ownership in your hair simply because it costs nothing to produce that hair.
Personally, I think the one big thing that’s wrong with Copyright is its length. When Copyright was 28 years, it was sensible - it rewarded authors and promoted new creations, and allowed people to use works which have become part of culture.

One of the most interesting speeches against the lengthening of copyright is the Second Speech on Copyright (currently out of copyright).

Especially in this age of cheap publishing, I don’t see why we have to have such long copyrights, and why authors are still having to sell their works to the publishers for a pittiance.
Another problem with copyright is that it interacts very, very poorly with computers. With computers, to do almost anything, you have to make a copy in the RAM. You have to install it into your hard drive. You have to use caching. You have to copy it to a diskette to bring it around. You have to make a copy to email it.

Modern computing is anathema to the concept of copyright. Copying is done so casually that it becomes invisible, and consequently, people stop thinking about what it means to make a copy of something, and where the value in a particular copy is. If it costs nothing to make a copy, what is the value of that copy? If there is no value, why should anyone be compensated for their work?

I think that this thread illustrates this quite nicely. The primary argument for copyright is becoming “compensate as little as is needed so that authors will produce more and newer for me” and not “I am benefitting from an authors work for which he should be compensated”.

The Creative Commons is one of the more interesting solutions to this problem, but I feel relies too much on human altruism to work. It basically relies on authors to enforce their works being free as in beer. Who will pay the bills? Who compensates the authors?

52

Fair enough, and I agree.

I just wanted to point out the flaws in the original analogy, because it’s often the case with IP threads that someone uses an analogy with theft of a physical object, and such an analogy is always misleading.
And then when someone claimed the original analogy worked just fine, I felt I had to defend my point.

I still struggle with the morality of this particular case. It certainly doesn’t “feel” wrong, but whenever I try to work it out from first (moral) principles, it is wrong (but hardly a very serious crime).

53

In any other industry, when the cost of production is decreased, manufacturers compete on price and consumers see a huge benefit. Why are authors more special than farmers or semiconductor foundries? :shrug:

54

Once I’ve paid for it, I can do whatever the hell I want with it, provided I don’t reproduce it. If I own it, I can sell it… but only so long as I no longer have it when I’m done.

Any disagreement there, Mangetout?

55

But you can’t just look at manufacturing price. You have to look at R&D efforts and developmental costs as well.

Say you’re a pharmaceutical company that put billions of dollars into R&D on a new miracle drug. It might only cost you 10 cents a pill to manufacture, but you’re still going to have to charge $20 each to cover your developmental costs. Now say a rival company steals your design and charges 15cents for the same thing you were charging $20 for. They can obviously profit from this, because they didn’t have to spend anything on R&D.

The end result? You go out of business, and no company invests anything into drug R&D anymore. Does this help society?

I see videogame/movie piracy the same way. Sure, it might only cost them 10centsto stamp out a DVD, but unless they charge enough for it to cover their development costs (and then some), they will just stop making high-budget videogames/movies.

56

Two words: sunk cost.

It is unreasonable to price for your sunk costs. It is reasonable to ask, in advance of a project, whether it will be worth it because of sunk costs, but this is a wholly different proposition.

They can profit from it whether or not they engaged in R&D. Once you’ve researched your drug, developed your software, wrote your song, etc, you’ve done it. There’s no going back. Research and development is not liquid. You can’t decide to change your mind. You spend two years and one million dollars to develop a game, you have a disc in your hand and that’s it. You can’t get back one penny of that money or one second of that time. (Unlike, say, buying a car, which is not a sunk cost. Of course, you may suffer a loss if you turn around and sell it again, but this is a different idea.)

It sounds nice when big pharmas try and get you to go along with their monopoly pricing but it’s just not true. You might as well say they have to recoup their advertising costs, or somesuch. (Incidentally, far more is spent on advertising than research.)

I think we can probably say that the market price for “stuff stamped to discs” is about $10-$20 by virtue of the fact that this is what you pay for CDs and DVDs regardless of content (important to recognize, if you truly believe the “R&D” line of BS). Video games have a manual that movies don’t, and CD liners aren’t quite as expansive, so we can expect video games to be a bit more, but not this much more. I’d wager $15-$25 at best, but I don’t really know. Maybe $50 is right and there’s no real oligopoly. (I doubt it.)

In any case, R&D has nothing to do with it, except in unfair and unfree ways.

57

Of course you can’t just look at the incremental cost of manufacturing a copy. Otherwise the cost of anything that can be represented digitally would be essentially zero.

But we all know that the cost is not zero, since people had to sweat to create that string of numbers that your computer can copy effortlessly. If we want more computer programs, movies, music, artwork, books, and so on, we have to provide some sort of incentive for people to create such works. Turns out people like money, so if we could find some way to give people money in exchange for creating things, then we’d see more of such things created.

But tying such compensation to copying is no longer very useful. Back in ancient times, there was no such notion as copyright or intellectual property. The monks who copied those manuscripts by hand didn’t work a bit about the rights of the authors of those works. No one who created such a work imagined they would benefit financially from such a creation, and it turns out that during this time very few such works were actually created. Bummer. People still wrote poems and songs and scientific treatises, but they did so for their own amusement, and if such works came into the possession of someone else, those books would be copied and distributed as the possessor saw fit. And of course, most works in those monastery libraries were created by people who had died hundreds of years ago, so financial compensation of the authors wouldn’t provide much incentive, since those authors were, you know, dead.

Then we have a new invention. The printing press. Instead of copying each book laboriously by hand, a work can be copied on an industrial scale. Anyone with a printing press could, with a fair amount of work, purchase paper and ink and do the work of setting the type, and churn out dozens–nay, hundreds–of copies of a book. A person could write a book, make copies of the book, and make a fortune by selling books! Except, anyone could make a similar copy. Bummer. And so, because the various rulers and potentates of the land wished that more people would create new books, they hit upon a new rule…only the author of the work had the right to print copies of his book. Anyone else who made copies would be breaking the law, unless the author granted that right.

And because of the technology of the time, such a copy-right was enforceable. To make money from selling books, you’d need a print shop. You’d need a storefront. The cost of printing a book wasn’t zero, only zealots would print a book to distribute it for free on streetcorners. And so people who broke the copyright were fairly easy to find…they had an address, they broke the copyright for some financial benefit, and if the cost of breaking copyright exceeded the benefit of breaking copyright, very few people would do such a thing.

Now we have a new invention, or a couple of inventions. Computers and digital media and the internet. And now, the cost of copying a digital work is near zero. The cost of distributing a digital work is near zero. Of course, the cost of creating that work hasn’t changed much. But the previous methods of enforcing copyright relied on the fact that it was fairly expensive to copy works via industrial methods, therefore only mild enforcement was neccesary. But now anyone can copy thousands of copies of anything. It’s one thing to make it illegal to mountaineer up the side of the Empire State Building. It’s another thing to make it illegal to glance at the Empire State Building as you walk down the sidewalk.

And so our current scheme of compensating creators for their work is now unworkable. In order for creators to continue to be compensated for their work we MUST find another method, the alternative isn’t that we keep our current system, the alternative is that creators will get no compensation at all. I have no idea what the new system should be, all I know is that the methods that succeeded in the industrial age are failing miserably in the internet age.

58

It’s exactly the same proposition. If the pharma company asks, in advance of the project, whether they’re going to be able to sell their stuff for $20 to recoup their sunk costs, and the answer is “no”, then they just aren’t going to bother with the R&D effort, and will cancel the project.

If a movie studio projects that nobody is going to see their planned $200 million budget blockbuster (because the expectation is that most of the usual audience will just wait until they can get a copy from a friend on a DVD-R for a couple cents), they just won’t bother filming it.

59

Sure. They will have some expected capitalization rate and some expected price and move forward from there, if they are pleased with the result. What I’m saying is that the price should be unaffected by sunk costs. One cannot reasonably price based on “recouping” investment.

Of course. But:

It is not, unless you have some means to unfairly control the price, like a legislative monopoly.

60

Not really. That sounds entirely reasonable.