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Friday, March 23, 2007

My post about bittorrent weirdness provoked an interesting back and forth in the comments about the morality of illegally downloading something you can't get otherwise.

The law is clear. But there are immoral laws. So let's discuss the morality of it.

I'm on the fence about this. I was a Computer Science and English double major. The English major part of me (and the writing professional) would prefer that people not pirate creative content, because if no one's paying, my job will cease to exist, and so will the movies and tv shows I would have created.

On the other hand the retired hacker part of me believes that "information wants to be free." Which doesn't mean it has to be gratuit, no cost; but it should be libre, free to circulate. If the Oscar winner for Best Foreign Film of 1970 is only viewable by those of us with a 35mm film projector, does that absolve people who download it for free?

I do believe there is a moral difference between pirating bits and stealing something physical. If I steal your bicycle, you no longer have a bicycle. If I watch your movie without paying you, I have shorted you some money, but you are not actually worse off than you were before.

On the other hand I don't buy the argument that "If I had to pay for it I just wouldn't watch it, so there's no harm in pirating it." If you couldn't pirate, you'd eventually get bored of watching nothing, and you'd start paying for stuff.

But what about the case where the rights owner won't make his property available at all? Say there are several rights owners and a court case that's dragging on endlessly. Say the music was licensed for film but not for videorecordings, because videorecordings didn't exist yet, or because it didn't occur to anyone that there would be a market for a DVD set of The Wonder Years. Is there a still moral obligation not to download a pirated copy?

You could make the case that by downloading it for free you reduce the financial incentive for the rights owners to clear their situation up and distribute the film. But you could also make the case that if at least some people are watching it, it keeps the piece from sinking into obscurity. Either way I think the damage or gain is not very big, and de minimis non curat lex.

Also, does it make a moral difference if you are watching the movie as an end-user -- for entertainment -- or for research? Does it make a difference if you're a student writing a paper on Ennio Morricone, or a filmmaker studying Italian style of the period, or a novelist wanting to see how the story was told because you've got a book with a similar theme? Isn't the culture harmed when an important piece of that culture is hidden away? If nobody could see Michelangelo's David because the owner was keeping it in a warehouse, could people be forgiven for illegally sneaking inside and just looking at it?

Does the age of the piece matter? Many people (I'm one) think that copyright has been extended far longer than is right. Copyright gives artists the incentive to create things knowing that their creations won't be stolen. But at what point should the content enter the public domain, otherwise known as "the culture." Where would we be now if the Shakespeare Estate still controlled the rights to Romeo & Juliet -- and, say, protected the brand by refusing to license any productions not set in 16th Century Verona? That's where we are with copyright. Every time Mickey Mouse threatens to come out of copyright, Disney pushes the US Congress to extend copyright further back in time. It is now 95 years from the date of release; or the death of the author plus 70 years. At that point, we're no longer protecting the incentive for creators. I can't imagine anyone saying to himself, "I was planning to write a novel, but my descendants will lose the rights only 50 years after I'm dead, so it's not worth it." At the current duration, we are just protecting corporate assets.

So, what do you think?

a. Does the moral obligation to respect intellectual property extend to property that the owner refuses to distribute in a reasonably timely fashion?
b. Does it matter what purpose you're pirating the material for?
c. Does it matter how old the material is?



What that back and forth failed to appreciate was that you are in Canada.

Canada has no law against downloading music (and perhaps by extension movies and TV, but that hasn't been tested). In fact, The Supreme Court of Canada specifically upheld this right in 2004:

(Despite what the article says, the right to upload is still very much a gray area. Downloading is fine, uploading is dubious. Strange, eh?)

Canadians pay a levy on blank media: videotape, CDs, DVDs. etc. The powers that be want to extend that to digital music players and hard drives, but the Canadian Private Copying Collective has not allowed that yet.

The idea is that private citizens can make copies of music and pay these levies which are distributed to copyright holders - and that's at the heart of our right to download. We pay for it.

By Blogger Webs, at 11:43 AM  

hey alex:
what about this situation: let's say I haven't seen season 4 of 24. I tape it everyday on a and e and then watch it. But i might miss some, so I download the eps I miss. Am i a pirate then? I mean technically sure, but if I just had someone pvr the ep. i miss...

the whole thing is a little strange.


By Blogger Mef, at 1:02 PM  

"At the current duration, we are just protecting corporate assets."

Exactly! This was an issue I never got around to bringing up in the other post (I'd just be accused of rationalizing). And it's mostly why I find myself mostly not caring about the rights of copyright holders. As much respect I might have for the actual creator of a work (and as much as I want him/her to get paid for it, cause I do), I can't find myself caring about the misfortunes of the corporation that actually owns the copyright. If the laws (in the US) were written in the interests of the general public and the creators of works, then I would find if had moral backing.
But as they are written specifically in the interests of Disney/Sony/BMI/etc., I don't care.

And that's not to say that Evil Corporations are always wrong and eeeevil. But depending on the circumstances (your A, B and C at the end cover them pretty well), I see nothing morally wrong with downloading/sharing/giving/copying.

By Blogger Tom, at 2:50 PM  

Did you see last month's Vanity Fair? an article with thoughts (& tips) on topic:

By Blogger tgrrlily, at 4:12 PM  

Is it wrong? Maybe, but how much I care has been influenced by the stupidity of the industries that saw downloading as the enemy instead of the future. And the thought that in most cases my own dastardly downloading has had the effect of acting like unintentional marketing by the TV and recording industries.

The ability to download TV has made me a more loyal viewer of certain shows - no need to feel like I can't follow the story if I've missed an episode.

I saw A Bit of Fry and Laurie through bittorrent because it wasn't available any other way. When the DVDs finally came out, I snapped them up.

I buy far more music now that illegal-but-not-in-Canada downloads have introduced me to a wider variety of artists I would never have risked money on.

Where's the harm? I'd argue that in many cases of file sharing, there's a benefit to artists and copyright holders.

By Blogger Diane Kristine Wild, at 4:18 PM  

Some country's copyright laws are a bit more rational on this point. For example, I'm aware that some theoretical people might have downloaded and watched a torrent of the unaired Global Frequency pilot. As my wife-the-lawyer explained it to me, in Japan, those pirates would have had the ability to pay a reasonable usage fee for the otherwise unavailable material to the copyright holder. With a system like that, everyone wins: the copyright holder is justly compensated for his creation; and the consumer isn't blocked from appreciating the creation because some jackhole at the CW (nee WB) thought the masses were clamoring for The Pussycat Dolls and more Reba.

By Blogger R.A. Porter, at 4:39 PM  

Well, I gotta tell ya... right after I read that post I went and downloaded Bon Cop Bad Cop (which I would otherwise be happy to get from Netflix if I could).

By Blogger JC, at 9:52 PM  

I assume you're just being sarcastic, Jason. There's a difference between a movie that isn't available anywhere and one that you just can't rent from a particular vendor. If you really want a copy of Bon Cop, Bad Cop you can click that link on Alex's page and buy it from Amazon.

This isn't a case of a copyright holder denying you access - like Global Frequency - or the demand not being high enough to warrant distribution. Not being able to put it in your Netflix queue is just a minor inconvenience. Everyone involved in that movie, Alex included, would love for you to buy or rent it.

By Blogger R.A. Porter, at 10:19 PM  

Or you could ask Netflix to stock the movie!

By Blogger Alex Epstein, at 10:28 PM  

I was being tongue in cheek but I wasn't kidding either. Regarding Netflix, consider it done. Regarding Amazon, I disagree. The DVD costs $49.99 US with three to six weeks shipping. There are
secondary vendors selling it for 26.99 and that sale may or may not put money in the distributor or producer's pocket (meaning, they could be screeners or of other suspect provenance). And I want to rent it, not buy it. From my point of view it is a foreign film that has not been made available in the United States and apparently will not be, and it is a case of there not being high demand (sorry, dude). Not quite the 35mm film in the school library but to me, a grey area.

(More of a grey area than if it was an English movie since those DVDs aren't meant to be played in North America. Hell, technically when I purchased "Angel" Seasons 1 and 2 on a UK DVD a year before it came out in the US I was violating the network and studio's copyright and costing them a U.S. sale. This was just before US TV shows starting coming out on DVD; in the UK they always had 'cause I guess the syndication reruns didn't matter over there. Once upon a time the record companies considered this a huge problem with Smiths and Depeche Mode records too.)

So then you have to weigh the value of simply having the movie seen by another person(plus any attendant word of mouth) against the fraction of of a potential sale of a potential rental copy I might represent. If I'm Alliance Atlantis I'm sure the latter is still more important. If I'm the writer... well, that's your call.

And while I agree "if I had to pay for it I just wouldn't watch it" is a lame justification I do think that's how most illegal music downloading works -- the number of people who still go on to buy the CD or help get the music heard through word of mouth far outnumbers the people who "steal" a CD they would have otherwise bought. And the bigger picture is really the industry's failure to adapt to all this stuff quickly enough.

By Blogger JC, at 12:46 AM  

I'm with you as far as the idiotic price of the disc in the US. Who's going to pay $50 for it? It's cheaper to buy it from and have it shipped to the States. That's absurd. Especially when the Internet allows you to arbitrage easily.

Charlie Jade is, even more idiotically, only available on an overpriced Japanese DVD set. As opposed to, say, iTunes.

Distributors are really going to have to give up all their clever protectionism and just release movies everywhere all at once. Otherwise they're going to lose to piracy the very part of the audience that is most anxious to see the movie.

By Blogger Alex Epstein, at 9:41 AM  

When I decided to start watching Heroes after Christmas, I ran into this situation.

I started TiVo'ing it, and caught some repeats, but I was missing several episodes. I was willing to pay for them on iTunes, but since iTunes doesn't let you burn them on DVD, or convert them to WMV (and stream to my Xbox 360), I decided not to because I couldn't stand watching them on my computer.

So I downloaded them from BitTorrent. I figured it wasn't a big deal. It's not like I watch the commercials on my TiVo anyway. What's the difference between skipping commercials and downloading for free?

By Blogger Dante Kleinberg, at 11:48 AM  

a. Surely, as a writer, you've written some things in your career that were so bad that you wouldn't want anyone to see them. In that case, I think, as the owner, you should have the right to prevent a work from being published. So I think there has to be some protection of a copyright holder's right not to distribute a work.

b. The purpose does matter. There's a difference between pirating something that you intend to burn onto media and keep (or worse, make additional copies for your friends) and downloading something that you intend to watch once and then delete. I frequently download things just to find out whether they're worth buying. About 30 per cent of the time I do end up buying it. Since I started downloading music, for example, I actually spend more money on CDs than I did before. Nothing discourages you from buying stuff more than taking it home only to discover that you've wasted your money on crap. The next time you might think twice about buying a CD as opposed to, say, a case of beer, where you at least know what you're getting.

How has the law traditionally dealt with copyright when it comes to public libraries? Libraries have been around for a hundred years or more. Anyone with a library card can borrow a book and read it without paying for it. And now almost all libraries have movies and CDs. I, personally, never download stuff that I can borrow from the library. It's just more convenient. (And the library has some good stuff, too. I recently borrowed The Singing Detective. Try finding that at your local video store!)

c. I agree with you entirely.

By Anonymous Anonymous, at 7:27 PM  

The copyright should die with the author(s).

By Blogger The_Lex, at 8:17 AM  

Downloading is good for the music industry, the tv industry, and the film industry. They just don't know it yet.

The ready availability of CDs hasn't killed radio. The ready availability of TV hasn't killed the film industry. The internet didn't kill publishing. Downloading won't kill the entertainment industry.

The entertainment industry has been groaning under the weight of its own traditions for decades now. Downloading is just the next big thing to force the industry to change and grow... and make even more money for itself in the future. They just need some bright spark to figure out how.

By Blogger Jane, at 7:38 PM  

After decades of finding these ownership arguments both exhausting and exhaustive, I tried looking at it a whole new way -- one that doesn't involve property and ownership -- a philosophy. Then I met a man in an ice cream shoppe.

His name is Lewis Hyde, and he's a MacArthur Fellow (a recipient of one of those six-figure genius grants) who wrote THE book on this subject... The Gift: Imagination and the Erotic Life of Property.

Now I see my work (20 years as a freelance and screenwriter) as I had always seen it -- a gift. And I express my appreciation by keeping the gift moving, from here to there, wherever it will go. I am rewarded by its movement, in lots of ways, including financially. But don't let those two sentences say what the book will teach you. Read it, and you'll have a fresh take on these sticky moral/ethical questions.

By Blogger mecca macalaster, at 11:27 AM  

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