26 September 2010

Sharing: Theft or Duty?

I regard Matt Asay as one of the most perceptive commentators on the world of free software and related areas. So I was rather disappointed to read the following in one of his recent columns, which dealt with the BSA's highly dodgy claims about piracy:

I don't mean to diminish the wrong nature of stealing software. Theft is theft and should be punished.

Here's what I wrote to him:

It is very hard to steal software: unless you creep into a computer store and steal the boxes (do they still exist?). As you know, what really happens is that somebody makes a copy of software: that is not theft, of course, that is copyright infringement. If I make a copy of a piece of software, the original still exists, but there is now a copy that I have. I have stolen nothing - I've actually created something - but I *have* infringed on copyright.

But wait, you will say, when you make that perfect copy you are *effectively* stealing the money that you would have paid for a legal copy. Except that you yourself write: "$1 in "lost" licensed revenue would not magically become $1 in proprietary software sales if piracy were reduced. It's very likely that users would elect to spend their money elsewhere." Exactly: couldn't have put it better myself. You can't start talking about that money that wasn't spent as if it were real and concrete: it's not, it's notional.

Of course, it is probably true that some fraction of the people with pirated copies *would* have bought genuine ones had they not made the copy: so that is truly lost revenue. But it also probably true that pirated copies act as marketing samplers and encourage other people to buy legitimate copies that they wouldn't otherwise have bought – to get support, updates etc. (Indeed, in the world of music, there are half a dozen studies that suggest this is the case.) After all, giving away software for free is the basis of many businesses based around open source.

Calling copyright infringement "theft" really plays into the hands of organisations like the BSA that put out these deliberately misleading studies. "Theft" is an emotive word that biases the reader against the people involved. If you call it "copyright infringement", and note that copyright is a time-limited, state-granted *monopoly* - and I think everyone accepts that monopolies are generally bad things - then copyright infringement simply means infringing on a monopoly. That's a rather different emotional bundle, I think, and a better one to place in opposition to the BSA's manipulations.

Since Matt's reply to me was a private email, I won't quote it here, but essentially his answer was that artists can set the terms under which we access their works, whether or not they are reasonable terms, because ultimately it's their creation.

It's a good point, and so I'll try to explain here why I don't think it's correct.

In fact, artists manifestly don't have an absolute right to choose whatever terms they like under which their works are distributed. In many countries, for example, they are limited by the first-sale doctrine. This means they cannot impose the condition that their book or CD, say, once purchased, must never be sold on second-hand, or given away. So already there are limits to what they can demand.

This is accepted, presumably, because there is a broad consensus that this kind of limitation is not reasonable, and that artists should be obliged, by law if necessary, to give up what they might otherwise have seen as a natural “right”.

What this comes down to, then, is a question of what is generally accepted as reasonable. A big problem with digital copies is that we have never lived in a digital world before, so we have not yet established the social norms there that ultimately will allow laws to be framed to capture what is deemed fair.

Not allowing people to make personal copies and share them for non-commercial use is, I believe, exactly like not allowing people to sell their books second-hand, or to give them away (note that I am not extending this to intentional commercial-scale copyright infringement, which is almost by definition criminal because conducted with the specific aim of depriving creators of their sales.)

It is an unreasonable restriction that will, ultimately, I believe, be seen by the majority of society as such. Indeed, the fact that so many young and even not-so-young people share files today already suggests that we are moving to that point fast.

So, why do I think this is unfair? In many ways it is similar to the thinking behind allowing people to give away or sell books second-hand - and note that in the latter case actual money is involved, whereas it almost never is with personal file sharing, so the latter is actually *less* harmful than the situation in the analogue world. But I am more interested in the giving away of books, so I'll concentrate on that.

When we pass on a book to a friend, or just give it away to a charity shop, say, we are really passing on the experience of reading that book, and the knowledge to be gained from it. It is an intensely social act of generosity, a desire to share a pleasure with our fellow human beings. It allows us to manifest our best qualities, and it can also be an opportunity for us to contribute to the general improvement of society – for example, by passing on an educational book, or one that encourages readers to engage in some activity that is beneficial to all (recycling waste, or becoming more tolerant, say.)

So if we were forbidden from sharing our books with friends and strangers, the world would be a poorer place in many ways, since we lose all these opportunities for generosity and contributing, albeit indirectly, to society's progress. Indeed, it's interesting that many people are finding one of the biggest drawbacks of otherwise convenient e-books is that you often *can't* share them in this way: this makes them a far more lonely, and hence rather sadder pleasure.

Of course, there is one important difference between analogue goods like books and digital ones like music or texts. Whereas I can only share an analogue object with one person, digital artefacts can be copied endlessly, allowing me to multiply my generosity and the joy received from it hundreds, thousands or even millions of times.

Not being able to share digital files turns out to be far worse than not being able to share analogue ones like second-hand books in terms of the positive benefits foregone. Moreover, you don't even have to give up your original copy where digital artefacts are concerned, so there is no disincentive for you to share it; some might even say that the social benefits of doing so are so great, that you actually have a duty to share....

Society has already decided that being unable to share second-hand goods is an unreasonable condition for creators to impose. I believe that we will come to the same conclusion for the sharing of digital files, where the case for allowing such non-commercial, personal transfer is even stronger.

After all, this is not some abstract issue. Currently, billions of people in developing countries cannot access huge swathes of transformative, liberating knowledge because of copyright laws, or are denied life-saving medicines because of drug patents. Being able to share is literally a matter of life and death.

Follow me @glynmoody on Twitter or identi.ca.


Peter said...

"the wrong nature"

This doesn't surprise me. From what I can remember (back when I used to read his posts), he was a big "Open Source" advocate. And when I say "Open Source", I mean the hardcore religious OS zealot type. The kind of OS "advocate" that doesn't care a hoot about freedom but only cares about the economic and technical benefits "Open Source" offers. This type of extremism is often closely coupled with warped moral views on the ethics of sharing useful information.

Those pragmatic extremists are an odd bunch. (Even I'm not sure if I'm being facetious here.)

Glyn Moody said...

@Peter: well, they may not be the case here, since his argument is essentially in favour of ethics - with mine, implicitly, being unethical...

Crosbie Fitch said...

This is why we must defer to nature rather than desire when determining what is ethical, i.e. the natural rights we're born with rather than the commercial privileges we might lobby for and be granted.

There are still some in the free software movement who steadfastly believe in copyright as a fundamental right, that the GPL is thus a jolly good idea for those situations in which copyright gets in the way of sharing and building upon mankind's knowledge. Such people do not go further to question why a 'right' must be neutralised by license to facilitate collaborative software development.

There is such a thing as natural intellectual property and a natural right to exclude others from it. For natural rights this has to be self evident. If you can naturally, physically prevent me making copies of your work (without invading my privacy) you have a natural right to prevent me doing so - irrespective of facile arguments that 'You still have a copy'. I cannot walk up to you, snatch your CD out of your hands, copy it, give it back and say "Thanks mate - don't look so miffed, you haven't lost anything, you still have a copy!" without violating your natural right, your natural power to exclude me from your possessions.

Where things get confused is when the state grants additional powers, beyond natural ones, inevitably by annulling the equivalent natural power from everyone. Thus in 1710 Queen Anne annulled the right to copy in everyone in order to reserve this to create a monopoly for the exploitation of press (instituting the monopolies they had until then been able to nefariously achieve through their own brute force - and previous grants). The right to copy then becomes a privilege (you are then able to license anyone you like the permission to copy once again, as they were naturally able, and had a right to). This privilege must by definition arise in each original work (not being a copy), and so finds itself briefly in possession of the author before the press buys it from them for a pittance.

So when you give someone a CD, it is now in their possession and they can naturally do anything with it they like, unless you have loaned it, in which case they need to give it back in good condition. That means the recipient of a CD has a natural right to copy it - since nothing naturally prevents them. Whoever covets the power to prevent them would need to have a crystal ball to detect copying, and a global army to arrest and punish them for doing so. Copyright grants such power (though being only superhuman rather than supernatural, it is rather ineffective these days, even when made global and draconian by ACTA).

So, you can steal intellectual work (copies made via burglary), but you merely infringe a monopoly when you make copies of intellectual work you have purchased or been given - in this latter case you are actually reasserting your natural right and liberty, contrary to Queen Anne's edict.

Glyn Moody said...

@Crosbie: interesting points, as ever - thanks.

Peter said...

What I mean is that his ethical view (on these issues, at least) is formed from what the law says. In other words, if suddenly the law changed and copying software was legal, you can bank on the fact that he would then say there is nothing wrong with copying.

Apply that to *actual* theft and it's absurd. If for some reason it suddenly became legal for me to take your bike, it doesn't change the fact that it's unethical for me to do so.

Matt isn't taking an ethical stance here. He's paying lip-service when he says, "the wrong nature". He does this because his ethics regarding copying are wishy-washy. The pay-off though, is that wishy-washy ethics make it easy to take "pragmatic" stances. Without taking ethics seriously, you can toot the technical and economical benefits of "Open Source" while deriding people like Stallman.

zotz said...

"Not allowing people to make personal copies and share them for non-commercial use is, I believe, exactly like not allowing people to sell their books second-hand, or to give them away (note that I am not extending this to intentional commercial-scale copyright infringement, which is almost by definition criminal because conducted with the specific aim of depriving creators of their sales.)"

A bit more of an explanation re my identi.ca post: http://identi.ca/conversation/52043732

Consider Free Software. If you don't have the right to commercial activity it is not Free Software. So to in the Creative Commons world, the use of NC makes a work non-Free as per: http://freedomdefined.org/Definition

So certainly, intentional commercial-scale copying, is not by definition unethical. At least according to a goodly number of people. Are we really looking at the law and what it currently is here or at what should be?

all the best,


Glyn Moody said...

@Zotz: I don't think I'm following here.

I'm saying that *for proprietary, closed-source software*, selling large numbers of unauthorised copies for gain is essentially a criminal activity. I'm not saying selling large numbers of copies of free software is a problem, since obviously (to my readership) it's not.

Maybe you're saying I don't make it clear that I'm talking about proprietary software?

zotz said...

Well, what is and is not criminal depends on where and when you are talking about.

Some of your post seems to be talking more of what is "right and wrong" and some that is "legal and illegal" and I think some of the confusion may be arising from that.

So do we want to talk of what things should be like, what they are like, what some way they are like or what?

all the best,


Glyn Moody said...

@Zotz: maybe it's confused because the situation is confused. Some things are legal, some are illegal, and yes, I'm saying some things that are currently illegal should be legal.

I'm not professing to have the answers, I just want to pose the question.