Infringement is Real, Ignoring it is Unreal
Thursday, December 3rd, 2009 by Patrick Ross
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In rhetoric, there’s an old trick — begin with a true statement, and then follow with an argument that does not naturally follow from the true statement. When challenged, ignore the criticism of the argument and instead defend the true statement.
Here’s an example. True statement — “We’ll always have copyright infringement. You can never completely eradicate it.” False following argument — “Copyright owners should accept infringement as a reality and pursue other paths for compensation.”
This was the conjecture recently behind the argument of someone who advocates reduced rights for copyright owners. (She calls it “more balance” with copyright, again a rhetorical device where you manipulate language; by definition, balance is in fact a balance, if you add more to one side of the scale you create imbalance, which she would in fact prefer.)
This reduced-rights advocate on this Monday FCBA panel I was on said copyright owners should focus on enforcing their rights with physical works such as CDs and DVDs, but ignore infringement online. When several of us noted that online infringement causes economic harm (despite the challenge in measuring it precisely) and is in fact supplanting physical piracy in developed countries — why head to a bad part of town and pay for an inferior counterfeit good, assuming it’s even available, when high-quality infringed works are available for download or streaming in your home at higher quality? — she said online infringement is the future and “we’ll deal with the future when we get there.” That’s a good argument for a supposed technology advocate; look to the past.
Yes, there will always be infringers who infringe; if something is out there for free, even if illegally, and you think you can get away with taking it, you just might try. But it is illogical to then say we should just forget about the rights creators have with their own works.
There likely will always be hunger on this planet. Yet I give to groups like CARE and The Salvation Army because I want to do at least a tiny part to reduce others’ suffering. Many artists do a lot more; the late singer/songwriter Harry Chapin gave half his revenues to fight hunger.
There likely will always be disease on this planet. Yet many artists devote time, effort and money to support research and treatment. I did a small part earlier this year when I honored a friend’s request and helped sponsor her run for the Crohn’s & Colitis Foundation of America.
There likely will always be infringement on this planet. But along with online enforcement I strongly support education to help future generations understand that one doesn’t have to infringe; that’s why I donate to the Copyright Alliance Education Foundation.
If you feel it’s okay for you to infringe because 1) it will always be easy, and 2) everyone else is doing it, be honest and acknowledge that. But it’s disingenuous to argue — as even some academics such as Fisher, Lessig and Palfrey do — that just because some people infringe, those being infringed should just give up their rights and hope for the best.
December 4th, 2009 at 12:32 am
It’s not only real it’s prevalent.
As I flew home to Toronto tonight I glanced around the cabin at tired business women and men. Some dutifully punching on their keyboards working away others listening to music or watching movies on their laptops. I’m out of place, torn blue jeans, hikers and an old brown sweatshirt, pretty much my daily uniform. The gentlemen across the isle from me approx in his 50’s gold rimmed glasses, very professional & distinguished looking, shiny black shoes, not a dark grey hair out of place, gold cuff links and a large school ring I can’t quite make out is watching a movie on his laptop. I’m reading Hidden Empire , by Kevin J Anderson. The book looks old and worn but the truth is my 2 yr old got a hold of it and ripped both cover & back off. Never mind it matches my Jeans …well almost. There isn’t even a newspaper being read that I can see. Of course I’m not electronically ill equipped. My IPod, cell and Mac are stowed in my camera bag under the seat in front of me. I’ve no impulse to pull them out, I’ve spent too much time in front of a screen this week and the book feels…..good.
Then I notice the movie the gentlemen is watching is Inglourious Basterds. I’m pretty sure it hasn’t hit retail yet, the video quality looks perfect. Now I’m completely distracted. I’m facinated. Of course I’m making many assumptions here but don’t we all. The first, that it’s pirated. Assuming so, I want to ask him questions. This is not a man that can’t easily afford to see this movie in any venue he chose. Did he actually download it himself? I wonder if he got his kid to do it. What are his feelings of entitlemet and what drove him to get it? Was he just too impatient to wait for the release? I see a women watching a movie on her laptop. I wonder if it’s pirated as well, these are the business class flying back to Toronto from Washington and Baltimore.
These aren’t pimply faced geeks sitting in dark rooms in front bright computer screens downing energy drinks(ok, but I only do the energy drink thing when I’ve got a deadline). How do you change an attitude that is so prevelent and crosses so many demographics that it seems to be boardering on cultural acceptance?
December 4th, 2009 at 9:45 am
We have to try because our rights are at stake. It’s personal to us as creators.
Why does it matter to you whether we defend our rights? How does that harm you in any way? Why are you so insistent in fighting back and getting us to concede it’s probably a lost cause? And why would a Canadian be telling an American to consider giving up his or her rights under American law? Perhaps posting on Geist’s blog makes more sense for you.
December 4th, 2009 at 12:55 pm
Can you elaborate on the dangers of what these academics are saying leading to reduced copyright protections for creators? Specifically, any US legislation passed in the last 30 years that has reduced the strength of copyright protection? Or any legislative proposals that have made it past the hearing stage?
December 4th, 2009 at 1:00 pm
Terry,
Thanks for your question. I’m afraid I don’t understand what you’re asking. I’d encourage you to search both this blog and PFF.org for my past writings on academics such as Lessig if you wish to know more about my take on their arguments in favor of reducing creators’ rights.
December 4th, 2009 at 2:06 pm
Wow
“We have to try because our rights are at stake. It’s personal to us as creators.”
Absolutely, but the question is how, to me this comes down to hearts and minds . To you it may be something else and that’s why I ask how , I did not ask why.
Opening this blog for comment were you looking for cheer leading? Is it that you feel besieged by people who just don’t understand?
It may surprise you to know that I am a creator, although to be fair my medium is not under attack so badly as others, at least not from pirates.
It does matter to me and I think you should defend your rights. The question is again how?, both methods and degree. Expanded copy right laws have done what so far to stop piracy? And what harm have they done to the consumer? Is there no debate left in how we protect copyrights? The feeling I get from this blog, especially in your last post, is either you’re for us or against us.
Who said anything about giving up rights , you make so many assumptions, please point to where I said or even suggested we should abandon copyright. As far as being Canadian goes it was the US that approached us on ACTA not the other way around and as I’ve stated many times on this very site copyright is an international issue, you of all people should understand that, we all do business across transparent borders. In one sense ACTA is the right approach and I have not decided on the issue one way or another but I have concerns.
I understand that this is an emotional issue, it impacts both the work people love and their very livelihoods. However if we can’t talk about and debate these issues, ‘creators’ who have as a tradition been a great voice for rights(rarely their own), debate and humanity have truly fallen from grace.
I think that we have more in common than you may think but even if we don’t I don’t see why there can’t be civil discussion and debate without all the apparent acrimony .
Perhaps I have not clearly stated my position, for any misunderstanding in this area I appolagize
So here it is
Creators rights should be respected
Copyright Law in it’s current form is broken
Copyright is too inconsistent internationally
Copyright needs to be simple and straight forward
Copyright needs to weigh the rights of the creator with the rights of the consumer
In balancing the rights of the creator with the rights of the consumer (whom I am told also take their rights personally) we will encourage and perhaps heal an ongoing symbiotic relationship (by that I mean synonymous with mutualism)
Please feel fee to point out the error of my ways or where I have been inconsistent with this position.
I don’t mind being proven wrong. It only means the next time I’ll get it right.
And thus the problem continues, let us not find common ground and move forward let us battle and destroy what we have made.
December 14th, 2009 at 10:28 am
Mr. Ross, you ask why it matters (and why we would try to stop it). The answer is that the truly magnificent scope of copyright “rights” you allocate can (to put it nicely) be seen as infringing on other rights. Even those of us who make their living off copyright start to become concerned over this framework of restrictions, technological locks, and legal viciousness. A lobbying campaign against the blind launched to uphold the principle that copyright law only ever expand!? Check the MPAA letter on the issue - it is difficult for me to understand how anyone could still believe they were the “good guys” being oppressed and stolen from when they are propagating such offensive rhetoric to justify terrible law!
December 14th, 2009 at 1:31 pm
Terry Hart asked if anyone can name:
“Specifically, any US legislation passed in the last 30 years that has reduced the strength of copyright protection? Or any legislative proposals that have made it past the hearing stage.”
Just for starters the US Congress took away the right of American Songwriters to get paid for performances in most restaurants… For which the US was sued by the Irish in the World Court and lost. Now YOU the public are paying the fines every year to pay the foreign songwriters but the US songwriters aren’t getting paid!
But far worse is what the Congress has NOT done. That is, pass legislation that would help US Songwriters be able to ENFORCE their rights on the internet. Currently I have to make a Federal case out of any infringement of my work. Who has the money to do that? I don’t know of a single songwriter who has brought a suit in the US. The US Congress took the Civil enforcement provision out of the Pro-IP act leaving it toothless
so far as the REAL source of music looting is concerned. A law that isn’t enforceable is
just a Blue Law that everyone ignores. That is what the current US Copyright law has become on the internet. So the case can be argued that the Congressional inaction has actually gutted the US Copyright Law.
So there are just a couple of instances where the Govt. actively weakened or negatively impacted Copyright.
Hope this helps you understand the issue from a Creator’s perspective instead of an
Academic/ Ivory tower perspective.
December 15th, 2009 at 1:31 pm
Rick Carnes Says: “So there are just a couple of instances where the Govt. actively weakened or negatively impacted Copyright.”
So Rick what are you looking for specifically? Sounds like you’re in favour of new laws.
3 strikes? File sharing illegal? Encryption Illegal? We really need to discuss these ideas in a public forum to weigh impacts to both the consumer and the creator.
None of these ideas logically work well for either.
We need clever solutions. There are 2 sides to a healthy relationship. Creators on one side are loosing control of their work and on the other side consumers are disatisified with the methods used to maintain control.
Both sides need to be happy with solutions brought foward or both sides will lose.
The DMCA was supposed to help but artists are unsatisfied and consumers feel inconvenienced and that thier rights have been removed
And yet Pirates continue to flourish reaping all the benefits that would entice consumers .
Meanwhile groups like ASCAP who filed suit over royalties on ringtones and the SGA who lobby against Net Neutrality Rules continue to war on the consumer.
Don’t make me go through the list of harmful things the consumer has had to put up with due to expanded copyright. I assure you it’s much longer.
Where do copyrights fit with consumer rights?
Or are we just going to burry one in favour of another?
Will creators be happier if they’ve gained complete control over their work but their income gets cut substantially?
Some might
There must be approaches that will satisfy both creator and consumer.
December 17th, 2009 at 11:33 am
Jeff…
Just a couple of quick replies below:
“So Rick what are you looking for specifically? Sounds like you’re in favour of new laws. 3 strikes? File sharing illegal? Encryption Illegal?”
I am simply in favor of Congress enforcing the Copyright law. There are
numerous ways this can be accomplished. You are correct that we need to make sure
that we choose the way that creates the best experience for legitimate consumers.
However, music thieves are not ‘consumers’. Illegal down loaders should be dealt with like the garden variety criminals they are. Music thieves steal jobs and destroy the careers of honest, hard working people. Do not confuse thieves with honest, law-abiding consumers. Laws enforcement punishes criminals, not consumers.
“We really need to discuss these ideas in a public forum to weigh impacts to both the consumer and the creator.”
I have discussed this in public forums for ten years and will continue to do so.
“The DMCA was supposed to help but artists are unsatisfied and consumers feel inconvenienced and that thier rights have been removed
And yet Pirates continue to flourish reaping all the benefits that would entice consumers.”
In the absence of law enforcement looters always reap the benefits.
“The SGA who lobby against Net Neutrality Rules continue to war on the consumer.”
The SGA is lobbying to make the Net Neutrality rules work for both consumers
AND creators. Otherwise the internet will remain an unsustainable business model
that cannibalizes content and only pays the people who sell advertising on top of that content.
“Don’t make me go through the list of harmful things the consumer has had to put up with due to expanded copyright. I assure you it’s much longer.”
Do show me that list. Show specifically the ways that legitimate consumers have been harmed by the Copyright law, not just inconvenienced, but actually harmed. Then we can compare it with the list of harms to songwriters who have lost their jobs, their homes, their families, in some cases have even had their lives endangered (lost their health insurance!) due to lack of enforcement of the copyright law on the internet.
“Where do copyrights fit with consumer rights?”
Copyright laws were established to benefit the Culture. And whenever and wherever they have been applied and enforced they have done exactly that. We had a thousand years without copyright protection. We now call it “The Dark Ages”. Consumers benefit when creators are incentivised to create at the highest level. That level is achieved by professional creators. Professional creators only exist in an environment
where the use of their creations is compensated. Consumers do not benefit in a world
where Art is reduced to a hobby.
“Or are we just going to burry one in favour of another?”
My point exactly. We are currently burying the professional creators, especially songwriters, at an alarming rate. We need to restore the balance so that consumers
will have a continuing, sustainable supply of the music they love.
“Will creators be happier if they’ve gained complete control over their work but their income gets cut substantially?”
One does not follow the other. From rights come revenue. Creators are granted
only enough rights to earn the revenue to help them continue to create. That balance has been legislated and adjudicated over three hundred years. Now all that law is being scoff at by music looters who have adopted a ‘catch me if you can’ approach to Copyright.
Allowing this to continue benefits neither creators nor consumers.