Monday, March 14, 2011

define outrageous

Last week, Margaret Atwood was challenged on Parliament Hill to define fair dealing. When her definition and explanation included worries that an expansion of fair dealing would amount to theft from artists, she was told her comments were "outrageous."

On the weekend, educational fair dealing advocate Howard Knopf used his blog to lecture Ms. Atwood about copyright infringement and theft. Knopf is a lawyer, specializing in copyright. He has appeared twice (so far) in front of the C-32 Committee. I have four times in the pool.

According to Knopf:

Ms. Atwood still doesn’t "get" certain basic facts about law and economics. Stealing cars or diamond rings gives the thief additional tangible possessions and deprives the owner of these possessions.

This is the beginning of the standard free culture canard about copyright infringement not depriving the creator of their creation. If I illegally download a copy of The Year of the Flood, Ms. Atwood still owns the original. Nothing of substance has been taken; therefore it can't be theft.

I believe a six year-old child can see the flaw in that logic. In fact, I've tested this out on six year-olds, showing them how if I don't put allowance money in their piggy bank one week despite their having earned it, they still have all the money that was originally in there -- therefore nothing is stolen. "See," I say, "it's like an egg management fee."

Still, we hear all the time that piracy is not theft. This point usually comes to us in the voice of comic-book guy from the Simpsons -- "erm, I think you will find that the legal definition of theft does not apply, strictly speaking, to the act of copyright infringement" -- but it's a relentless comic book guy assault.

Except today a very prominent pirate, TVO tech journalist Jesse Brown, has called what he does to obtain content "stealing" and has gone to great lengths to justify his thievery with all the standard anti-corporate favorites from free culture theory. I don't really want to steal; Rogers and Bell make me steal with their high prices and terrible customer service. Or, as Brown puts it:

It’s a no-brainer. I’d rather be a thief than a sucker.

Read the whole Toronto Life piece:

Honour Among Thieves

And by all means follow the comment stream for an interesting plot development. Many early commenters disagree with Brown's take on piracy as a mechanism for encouraging better telecom. They make legitimate rebuttals and express genuine dismay with Brown's rationalizations. A bit later in the stream we see a sudden wave of comments accusing those earlier commenters of being corporate astroturfers, linking to a tweet by law professor and free culture theorist Micheal Geist showing a creator-friendly website informing its followers of Brown's article.

Brown and Geist have played this game before, tag-tweeting novelist Nino Ricci with accusations of propagandizing. The irony here, of course, is that they rallied a flock of true believers to blame creators for being rallied. You can't make this stuff up.

But let's not lose sight of what's been said today. Jesse Brown has dropped the twin free culture mottos - "Stealing is wrong, but piracy isn't stealing" - "I believe creators should be paid for their work" - stepped from behind the mask and said, flat out, I steal creative content and I think I'm right to do so.

This is new, and extremely revealing. I've listened to a lot of bafflegab and flim flam from the free culture camp over the last decade, but I've never heard anyone just come right out with it like Brown did today. I'm tempted to admire him (but for all that astroturfing nonsense he pulls to avoid engaging with those who disagree with him).

I guess all that's left is for Brown's friends to back him up on his statement.

How about it Dr. Geist? You helped your buddy Jesse out today by releasing your hounds on the dissenters. I guess that means you think, like Jesse does, that content piracy is stealing, and that stealing is okay.

I'll wait to hear differently.

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29 comments:

Darryl said...

Thanks for the link John. Good article.

Michael Geist called shortly after I read your post and he sent me directly over there to add a post which I dutifully did. Thanks so much for the opportunity to at least have a few minutes to think for myself without his voice in my head.

Joe Clark said...

Copyright infringement is neither theft nor stealing no matter who claims it is, including you or Brown. The distinction between rivalrous and nonrivalrous goods is unavoidable.

You and the copyright collectives you represent – they are your only real constituency; you are a front for collectives, not “creators” – might try doing a better job explaining how copyright infringement harms Margaret Atwood, the exemplar in the current discussion. You’d have to include users’ legal rights, as codified by legislation and the Supreme Court, in any such discussion.

Where’s that post, John?

Crockett said...

Well, there are some interesting thoughts going around the blogosphere today. As you said John, Brown's opinions were refreshing in their frankness, but I don't think they were that shocking.

My personal position is to pay for the content I use, but I have also been speaking for a few years now on the frustration for the Canadian consumer. It comes as little surprise that there are people who, for a lack of legal alternatives, turn to shadier means, I don't condone it but I understand it.

Now, almost comically, the industries will claim there are not legal alternatives because of the all the infringement that goes on and the consumer will say they infringe because of a lack of legal alternatives. Here we have our modern day 'chicken or the egg' paradox.

Which leaves us where? It is accepted that Canadian media services in most sectors are priced higher and have less selection than other countries, such as the USA. It is also accepted that our piracy rates are higher here, and conversely lowest in the USA where there are a plethora of options and sources.

As we look across the fence to our very close neighbor to the south, is it any wonder we want to keep up with the Joneses? It seems obvious to me that an increase in legal access and competing services is the best solution for Canada. The question then becomes why is this not happening?

Crockett said...

The short answer is greed, and a need to maintain control. Yes, part of the blame is on the infringing consumer, but I suggest the main problem is the incumbent industry. One only has to look at the recent UBB situation. Add to that the huge vertical integration in Canada of broadcasting & ISP providers and there is little incentive for these business to innovate. Why promote the use of netflix @7.99 when it might loose them a TV cable customer @79.99? Don't even get me started on what was the CRTC thinking ...

So yes we have some problems here in Canada. Is the solution more stringent copyright control and enforcement? Could it be increased competition and dismantling of content/delivery monopolies? Is educating the consumer the answer or will their 'civil disobedience' be a catalysis for change in the industry?

I posit it is some of all of the above. It looks like C-32 may be seeing a premature end. Next time around I hope for a more balanced and forward looking approach that focuses on our whole digital economy rather than just the narrow topic of copyright.

levistubbstears said...

John, it's like Justice Breyer of the US Supreme Court said in the Grokster opinion when the "free culture" proponents trotted out the same tired line in their apologia for Grokster: "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft." Of course.

The Mad Hatter said...

Charlie Demerjian covered part of this really well back in 2006:

http://www.theinquirer.net/inquirer/news/1043337/hd-disk-format-wars

As to the other part - you mean people actually watch TV? About all I ever watch regularly is some educational stuff like Time Team. Oh, and I do watch the BBC and APTN a bit. Most of the rest of what is on isn't worth watching.

Wayne

Crockett said...

Levi,

As I said above, I am not a promoter of infringement [aka piracy] but I hate to see a logic fail.

It is evident by definition that copying is not the same as removing. I could go into all the arguments; not depriving the owner of a physical item, not necessarily = a lost sale, even the questionable promotion advantages but the bottom line is it is NOT the same. It is spin meant to push a viewpoint, similar to the term 'piracy', casting images of a more macabre nature than plain old 'copyright infringement'.

The ethics and morality of copyright infringement is a valid argument but the definition of 'same as stealing' I'm afraid is not. Using this 'same tired line in your apologia' is equally unhelpful in the co-operative search for solutions we all must work towards.

John said...

Crockett,

While I appreciate your tirelessness in this semantic campaign, I need to point out that while you and Knopf and Joe Clark and McOrmond do your best imitations of Comic-Book Guy, Jesse Brown actively promotes piracy, which he calls "stealing," and y'all just sort of shrug.

That cooperative search for whatever it is you think we're searching for doesn't feel very cooperative from the creator side.

Joe Clark,

My best guess is that a posting supporting your particular perspective on copyright would be more suited to your own blog. Good luck with that.

"A front for collectives" -- that's a new one. I've never been called a front before.

Darryl,

Yep, Darryl.

Chris said...

We have to respect Browns right to state his opinion without being called names, and admire his brass for touching a nerve with this. The sad part for him however, is that the worm is turning. The worlds ISP’s are being called to task for allowing the stolen content to funnel through their pipes, the powerhouse ad agencies (Google, Microsoft) are taking on bad press for selling ads on cyber-locker sites and credit card companies are walking on eggshells in light of exposure for taking payments on the back of stolen art. History has proven time and time again that law and society WILL catch up with technology. Just because this “revolution” is happening online does not make it any different.

John said...

Chris,

Thanks for your thoughts, but I'm confused about the name-calling you mention. Brown has a history of stifling debate with vicious name-calling and mud-slinging, and he repeated the tactic yesterday and today by dismissing critics of his opinion as corporate astroturfers.

When I call Brown a pirate or a thief, I'm quoting him not insulting him.

BTW, I'm still waiting to hear from Michael Geist. How long is a reasonable time to wait before we can all just assume he's fully supportive of Brown's practices and definitions?

Chris said...

John – I get that, those were quotes. The spirit of the comment was more of a “take the high road” tone for the debate overall. Like you……I’ve had more mud slung at me (shill, astro-turf, puppet - to name the PG ones) in the past year and it’s becoming a little tiresome.

Crockett said...

@John "Comic-book guy" I had to look up that reference, been a while since I watched the show. It was frighteningly accurate in some respects ;)

"That cooperative search for whatever it is you think we're searching for doesn't feel very cooperative from the creator side."

John, of that I have no doubt, actually I think the feeling is often mutual. Brown's attitude is tempered by the 'three-strikes-your-disconnected-from-the-world-and-loose-your-house-to-boot' attitude from some quarters.

My point is this solidification of positions and stereotypes will do nothing to solve the problems both creators and consumers face. What we have now is not working, I don't purport to have all the answers but both sides have to be willing to give and that is what I don't see enough of.

Crockett said...

@John "I need to point out that while you and Knopf and Joe Clark and McOrmond do your best imitations of Comic-Book Guy, Jesse Brown actively promotes piracy, which he calls "stealing," and y'all just sort of shrug."

Please John, at least give credit where it is due. I have said repeatedly that infringement, notably for monetary gain, is wrong and should be punishable. By example I encourage people to pay for the media they use and I am a proponent of creators having diverse options for distributing their works with hopefully greater returns.

Hardly a shrug.

WJM said...

Whether or not copyright infringement is theft, it is absolutely clear that copyright NON-infringement is not theft.

To run off defending copyright infringement as non-theft is to -wrongly - concede that legitimate fair uses are infringement. They are not. And they creators; they do not harm them.

James Gannon said...

Copyright infringement is not theft as defined in section 322 of the Criminal Code. But it is theft in the general sense that the word is commonly used. Just like cheque forging, embezzlement, tax evasion, fraud and extortion would all be considered some form of "theft" or "stealing", without meeting the strict Criminal Code definition. I have no problem referring to those who make unauthorized copies of creative works as thieves, and referring to the unauthorized copy as stolen. If a CEO embezzles money from his company or defrauds its creditors, I would consider that money stolen as well.

John said...

Crockett,

Duly noted -- so go tell that to Jesse Brown so he understands not everyone who disagrees with his actions is an astroturfer.

BTW, still waiting on Geist. Has anyone checked on him lately? He's been awfully quiet about this. Darryl, send up the Geist-signal.

Crockett said...

Of course, you are welcome to your opinion James. But do you concede the distinction that taking a physical object, such as a candy bar, without paying for it deprives the owner of being able to sell that item. As opposed to copying an ephemeral item which does not cause the same, or possibly any harm? And that embezzled money wasn't copied, it was taken after all.

That is why there are two different terms; infringement & theft.

I don't discount the questionable morality of such, it's just you'd think as a lawyer paying attention to such details is something one should strive for.

Sandy Crawley said...

Oh Joe Clark, you don't even take time to be informed. Look at this blog for a second. John Degen is a creator in his own right. The fact that he is affiliated (along with about 12,000 others and growing) and has some knowledge of a copyright collective hardly qualifies him as a "front". Does the word member ring a bell? And I don't believe a single court decision "codifies" users rights. C-32 isn't law yet.

Darryl said...

Sure thing John, I'll get right on that as soon as I get a little bit of bandwidth. Jesse sent me a link to an awesome movie which is currently taking all my bandwidth to download.

Crockett and James, I'd suggest that whether you call it theft or infringement is irrelevant, just as long as you are using the right analogies when you do it. Instead of comparing it to candy bars, jellybean or automobiles, compare it instead to the exclusive rights of governments to run casinos, or sell lottery tickets, or the exclusive right of the police to direct traffic.

If you are comfortable saying someone stole from an off duty police man by directing traffic in the neighbourhood, or someone stole from the government by running an office pool, then knock yourself out. If the description seems out of place in the latter case, then I'd suggest you reevaluate its use in the former, because the latter analogies are far closer comparisons then candybars and jellybeans are.

Anonymous said...

Hmm ... what is the definition of Astroturfing?

http://twitpic.com/49ils4

Pieter Hulshoff said...

As said before: if you feel that copying and theft are the same, then I will gladly let you copy my car in return for stealing yours.

That said: copyright infringement is without doubt illegal, and although I understand some of the causes, I do not condone it. The industry however needs to understand that while there are some who will refuse to pay for it regardless (for whom I have no respect whatsoever), most of us are still waiting for legal alternatives to buy the things we want in the format we want. The main cause for copyright infringement at this time is still a lack of legal services.

John said...

Pieter,

What kind of car do you have?

Look, I own an exclusive right to copy my work, which I can waive, give, contract or license. This means, in effect, I own every copy (outside fair dealing) before they're even made.

You take one of those copies without following either the law or my terms and you are a thief. Let the lawyers quibble; a six year-old gets this point.

Furthermore, you expand fair dealing provisions in such a way that my exclusive rights are weakened, without providing a compensatory mechanism, and once again, I have been robbed.

Darryl said...

"Furthermore, you expand fair dealing provisions in such a way that my exclusive rights are weakened, without providing a compensatory mechanism, and once again, I have been robbed."

Similarly, you expand copyright holders rights, either through longer copyright duration, or by giving them new rights, (such as lending or resale) then I have been robbed.

John said...

Anonymous braveheart,

My defintion of astroturfing is Michael Geist claiming the support of everyone on the extremely passive Fair Copyright for Canada when he testified in front of the #C32 committee. What's yours?

An ad hoc group informing its real and active members of ridiculous claims that could harm them, and encouraging comment is NOT astroturfing. It's activism.

Fair Copyright's fake roots have been showing for years now.

Darryl said...

"An ad hoc group informing its real and active members of ridiculous claims that could harm them, and encouraging comment is NOT astroturfing. It's activism."


What's your definition of 'active member' here John? I'll bet that a huge portion of the BCC group practice the same passive activism that the FCC group does.

Many people who what to protect user rights and carry on creator rights are just as concerned about the changes that will harm them too.

It is all activism, but I am not in the least bit surprised that you attempt to dismiss those who disagree with you out of hand. It is your MO.

Crockett said...

Heh, as per my point yesterday. No one is willing to give an inch ...

@John "Furthermore, you expand fair dealing provisions in such a way that my exclusive rights are weakened, without providing a compensatory mechanism, and once again, I have been robbed."

@Daryl "Similarly, you expand copyright holders rights, either through longer copyright duration, or by giving them new rights, (such as lending or resale) then I have been robbed."

Crockett said...

http://arstechnica.com/tech-policy/news/2011/03/ccia-copyright-wiretaps-are-hollywoods-patriot-act.ars

And continuing on that point. The flow of utter rhetorical garbage from all sides needs to stop. 'Organizations' just need to drop the act and speak plainly, honestly and be willing to see others point of view.

Really, we are going to get nowhere until this nonsense stops, who are the big losers? Creators and consumers.

The Mad Hatter said...

John a front for the collectives. Heh. That's as good as the time that the Balanced Copyright team accused me of being paid by The Pirate Bay!

John would make a terrible front for anyone, sense he would insist on telling the truth as he saw it.

Wayne

Pieter Hulshoff said...

Dear John,

Look, I own an exclusive right to copy my work, which I can waive, give, contract or license. This means, in effect, I own every copy (outside fair dealing) before they're even made.

You're arguing semantics here, while I'm arguing law. You may have an exclusive copyright, and when I make a copy without your permission I infringe upon your rights, but that does not mean that you own the (illegal) copy I made. As such, I did not steal your copy; I infringed upon your copyrights. Incidentally, the penalties for copyright infringement are often a lot higher than for theft.