Home > Intellectual 'property' > Suicidally strong IP ?

Suicidally strong IP ?

June 10th, 2009

The strong showing in the EU elections by Sweden’s Pirate Party

is the outcome of yet another Pyhrric victory for the strong IP movement, which succeeded, a couple of months ago in securing prison sentences for the Swedish operators of filesharing site Pirate Bay. This galvanised about 7 per cent of Swedish voters into supporting the Pirate Party, which reflects the typical feelings of Internet users: hostile to intrusive and aggressive IP, concerned about privacy for individuals and households, in favour of transparency for corporations and governments. These feelings are, of course, diametrically opposed to those of the elite groups that have historically driven policy on these issues. In the light of this public reaction, and the absence of any corresponding electoral support for the IP lobby, governments everywhere will think twice before endorsing criminal prosecution of IP violators.

Belatedly, the IP lobby is waking up. Robert Wexler, the Co-Chair of the US Congressional Intellectual Property Promotion and Piracy Prevention Caucus has issued a call to arms. Wexler makes the statement, usual in cases like this, that his lobby needs to a better job in communicating the message. But, also as usual in cases like this, the real problem is the message itself, exemplified by his reported view that ‘Government and private sector efforts to make IP theft taboo have fallen short’.

The problem here is that no one outside the IP lobby, not even those who strongly support copyright and patents, believes that these things are property that can be stolen. There is, I think, quite a bit of public sympathy for the view that the creative workers deserve a fair return for their efforts, and that social institutions should help to ensure that they receive it. There is essentially none for the inane suggestion that copying a video is similar to stealing a car.

I suspect that IP is doomed, given the steadily increasing ease of copying, the spread of free or open-source material and the reaction against the heavy-handed tactics used so far. But if the IP lobby wants to try to save something from the wreck, they would be well advised to put forward more moderate claims, supported by more credible arguments. Trying to massage the existing message won’t cut it.

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  1. Monkey’s Uncle
    June 10th, 2009 at 16:15 | #1

    The notable thing about much of the debate is how transparently hypocritical the moral posturing is from defenders of IP. In all honesty, who hasn’t violated copyright at some time or another? Who has never photocopied more from a book than they are legally permitted? Who has never copied music onto a blank CD? I say, let those without sin cast the first stone.

    It is rather silly to expect some kid somewhere downloading free music to feel guilty about the fact that a wealthy artist or music retailer or promoter might miss out on a couple of dollars. Is this the grave moral threat of our times?

  2. Monkey’s Uncle
    June 10th, 2009 at 16:19 | #2

    “There is essentially none for the inane suggestion that copying a video is similar to stealing a car.”

    I agree. The idea that there is some kind of moral equivalence between intellectual property and physical property is asinine.

    The main reason copyright and patent laws were introduced is to provide an incentive to produce material, not to protect some fundamental right.

  3. Ben
    June 10th, 2009 at 16:45 | #3

    Sorry MU, I’m going to disagree with you. Stealing music is still stealing whether the artist is rich (most of them aren’t, although that is beside the point) or not. Also, stating that everybody does it does not mean that it is not unethical. This is true whether you are a hypocrite or not.

    Is stealing a CD’s worth of music morally equivalent to stealing a car? Of course not – I can agree with you there. I think we can both agree that in terms of economic value stealing a car is far worse than stealing a CD by several orders of magnitude.

  4. Nick
    June 10th, 2009 at 16:53 | #4

    But Ben, it’s not just about magnitude of economic value. It’s also about the nature of the crime. Stealing a CD and stealing a car are morally on the same plane, although separated by magnitude. Both crimes involves taking something that added directly to the manufacturers costs and that, by stealing it, you deprive the manufacturer of the ability to get revenue from.

    If I pirate music then I don’t take anything physical – the record company still has the digital music and can still sell it in exactly the same way. All their missing out on is a potential sale and I suspect lots of music pirates are mostly stealing music they wouldn’t have bought in the first place.

  5. smiths
    June 10th, 2009 at 17:42 | #5

    thats rubbish ben, stealing from the artists is the music industry
    anyway, real artists with actual talent are doing brilliantly on the evergrowing live music scene, where ticket sales, and sales of CD’s and merchandise continue to grow,
    know why?
    cos all those kids sharing music are going out and supporting it,
    $35.00 for a CD? its a load of cr*p,
    sometime around the mid eighties the record companies strangled mainstream musical creativity and i hope they collapse as quickly as possible,
    most musicians do it for the love it and get amply rewarded,

    personally i think most IP is bullsh*t,
    i knew a girl at an australian fashion business who was suing someone for copying her thai fishing pants design,
    in disbelief i exlained that it was an ancient design, not ownable by anyone,
    she responded that she had added velcroe and some nice material on the inside which become visible and attractive when the pants were folded

    that is IP in a nutshell, nicking something that hundreds of people over hundreds of years have developed and suddenly declaring it yours because you tweaked it, its lazy arsed rent seeking

  6. Jill Rush
    June 10th, 2009 at 18:19 | #6

    The heavy handed messages about “You wouldn’t steal a car…” at the beginnings of DVDs which cannot be fast forwarded will have little impact. The price of much material is large whereas people think that often the costs are far lower and that there are big fat profits being made by cigar smoking fat cats. This may be true or not but for many it will be a matter of outsmarting the rich corporations rather than being a mug. Pirates in this context will be seen as the good guys (by at least 7% in Sweden). There is also the notion that there are so few ways that people can resist the dictates of the modern state where life is so rule bound and structured that the very notion of quiet resistance is appealing. The imprisonment of people will not stop this kind of practice because of its broad based nature.

    If the IP want to make people pay for content they may reflect on the reasons that people will take risks to make material available for free to others and that the others will download. The desire to have something for the cost of an internet connection without additional payments is an aspect that many organisations have had to deal with. Perhaps newspapers or google can provide some insight.

  7. Jake Bowden
    June 10th, 2009 at 19:07 | #7

    Deleted OT snark. Since this is your first comment, I’ll make it your last also.

  8. June 10th, 2009 at 19:25 | #8

    Deleted OT snark.

  9. gthorpe
    June 10th, 2009 at 20:59 | #9

    I cant help but compare it to gardens.
    Gardeners make beautiful places to be. Most do it because they love it.
    It may be fair enough to charge people for visiting the garden, or for using the garden for events, weddings and private events and the like.
    But copyright is more like charging everyone who has any vision of any of the garden at any time. Every passenger on the bus should pay a little to every person with a garden on a main road because they get the enjoyment of it.
    Music made by lovers of music for music’s sake is the only music I want to hear. Gardens made by gardeners who love what they do are that much more beautiful than walled hidden gardens retained for the exclusive.

  10. stuart
    June 10th, 2009 at 22:37 | #10

    From personal experience in the past I’ve frequently downloaded music, most of which I wouldnt have, or couldnt have afforded to buy. However if I’ve found artists who I’ve liked, I’ve bought the CD or seen the band live, bought merchandise etc. I think this kind of behaviour is reflected in the majority of people who download music. This sought of downloading tends to spread the word about little known artists and I think it may actually increase their popularity and earnings. There’s obviously freeloaders and there always will be but overall I think it has a positive impact.

  11. TerjeP (say tay-a)
    June 10th, 2009 at 22:50 | #11

    It seems then that EU elections are not entirely meaningless.

  12. TerjeP (say tay-a)
    June 10th, 2009 at 22:51 | #12

    p.s. Any thoughts on what the EU elections mean in regards to the British Labour party?

  13. Monkey’s Uncle
    June 11th, 2009 at 00:22 | #13

    Terje, it’s hard to put much value on EU elections as turnout tends to be lower and people often protest in various ways. The Conservatives actually beat Labour convincingly in the 1999 EU elections, yet this was hardly evidence of any real shift at the time.

    The local government elections, OTOH, clearly show Labour’s position is dire. The government is clearly terminal. I think the only question will be the size of the defeat.

    The expenses scandal will hurt Labour further. I suspect it will lead voters to be more inclined to vote against incumbent MPs (a kind of ‘throw the rascals out’ sentiment). This can only hurt Labour as it will be Labour-held seats that are in danger.

  14. Martin
    June 11th, 2009 at 01:36 | #14

    Was the key change that content can be copied without degradation? The CD was the watershed there. Before that, the official legal content was better quality that the copies and the technology in itself was on the content owners’ side. After that, the content owners were trying to provide extraneous barriers such as legal penalties or Digital Rights Management.

  15. Ben
    June 11th, 2009 at 09:26 | #15

    Smiths, 10 years ago I would have agreed with you, but these days most musicians (apart from the high profile manufactured ones i.e. Britney) are either independently publishing their music and using the big labels for distribution only or they set up their own labels and distribute themselves. The big difference is that the musicians hold the copyright of their work now as opposed to the label.

    The era of the majors ripping of bands via the contract system is pretty much over – that business model was abandoned because it doesn’t work in the long term. All the labels that continued to use it are now extinct.

    And yes most income for musicians comes from touring, but the money from mechanical royalties is still an important income steam.

  16. June 11th, 2009 at 11:59 | #16

    I recall Warren Buffet saying a while back that “the internet has done more damage to capitalist property rights than Karl Marx”. Or maybe I said it, I can’t remember.

    I do feel a little bit sorry for the artists who have lost their source of income through the collapse of analog recording market. I have always thought that producers of digital storage units should pay a small royalty to artists. Isnt that what photocopiers pay to publishers?

    More generally the conflict bw IP owners and pirates illustrates yet again the exhaustion of post-modern liberalism. The new kinds of problem – ecological, technological, plutological, anthroplogical – challenge traditional notions of individualism.

    Simply re-iterating the “mine-thine” model ad infinitum will not do anymore as spill-over and emulation effects are a huge source of conflict in thoroughly networked societies.

    A revision of liberalism,. particularly the received notion of “individual autonomy v institutional authority”, is indicated.

  17. Stephen
    June 11th, 2009 at 12:10 | #17

    Its not stealing, its merely the breach of a license condition. Its civil, not criminal.

    Its a matter for private damages, not a matter for prosecution by the state.

  18. Hal9000
    June 11th, 2009 at 13:12 | #18

    There have been a number of studies showing that the biggest consumer breachers of IP laws have also been the biggest buyers of legal IP products, confirming stuart @ #11.

    At any event, the crocodile tears being wept by the IP lobby about struggling artists are entirely confected. IP lobbying is about enforcement of monopoly rights over valuable existing product, not securing incomes for artists. Consider a couple of anomalous examples of how it works.

    First, note the artificial difference between the IP status of the artistic output of a musician or novelist one the one hand and a visual artist, say a sculptor, on the other. The sounds or words produced by one lot of artists are gifts that go on giving for the rest of their natural lives and (eg the egregious case of Walt Disney) even for generations beyond. The objects produced by the other lot fetch their original asking price (less extortionate commissions usually) and that’s that. A drawing by Picasso that fetched the cost of a round of beers for the struggling artist may subsequently sell for millions, but not one cent accrues to the artist. By contrast, early recordings of a musical ensemble that later makes it big just keep on racking up the bucks, long after the death of the artist (which may indeed have been a shrewd commercial move from an IP point of view – e.g. the posthumous success of Janis Joplin, Jimi Hendrix and Kurt Cobain).

    Second, the advent of the internets and the other digital gee-whizzery has meant that the IP owner no longer needs to actually produce a product such as truckloads of vinyl discs or of celluloid delivered simultaneously to thousands of retail outlets. The physical object costs of production are thus zero. And yet the costs of the IP have if anything actually increased – it’s dearer to buy a track off iTunes than to buy the cd. Profiteering, they used to call it.

  19. Colin
    June 11th, 2009 at 16:56 | #19

    If I steal a car, I have the car and the original owner doesn’t. But if I copy a CD, I have a copy and the original owner still has their CD. The original owner loses nothing! That’s why copyright infringement is nothing like theft.

    The idea that every pirated copy of a CD/movie represents a lost sale is ridiculous. IP piracy means that the price of the item effectively becomes zero, and when the price is zero there will be many more “sales” than when the same item costs $20.

  20. June 11th, 2009 at 17:19 | #20

    Strong IP is presently undermining climate change negotiations. Australia has been one of the advocates of Strong IP, which has been making the Indian delegation very unhappy.

  21. Stephen L
    June 19th, 2009 at 22:42 | #21

    I accept that copying a CD is not like stealing a car, and the industry had created a rod for its back by pushing the idea too hard. However, music sales have crashed over the last decade. The reason is pretty obviously copying. Sure every illegal download may not be a lost sale, but if every third one is, where does that leave the artists?

    I’m sore on this because my ex was a musician who eked out a bare living by touring six months a year. She never got serious radio play, and her audiences were far too small to live on. However, she had an astonishingly high proportion of people who attended her gigs buy a CD afterwards, and from that she survived, although clearly below the poverty line. She’s packed it in now, partly because she can’t do it any more. People are too used to getting music off the net for free, and are less likely to pay for CDs. Sure she writes music for love, but she writes a lot less of it now, and I think we’re all poorer for it.

    Someone listening to her music without paying for it may not be stealing, but they’re still getting an illegitimate free ride – just as someone who snuck into one of her gigs without paying would be. Too many free rides brings down the system. Unfortunately I have no answer on how to solve the problem. I think we’ll just see less music made in the future.

  22. June 21st, 2009 at 04:50 | #22

    Stephen L: “music sales have crashed over the last decade. The reason is pretty obviously copying.”

    So far no study has found copying has being a significant cause for music sale decline. “obvious” no.

    “People are too used to getting music off the net for free, and are less likely to pay for CDs.”

    Studies have shown that people who download the most are also those who buy the most. Plus the “user to” is the fault of musicians who chose to make their music unbuyable over the net (DRM, works on only one device, purchased songs not working when provider goes under, etc…).

    “I think we’ll just see less music made in the future.”

    Not the opinion of all musicians:

    http://www.techdirt.com/articles/20090618/0324415277.shtml

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