Film studios to become ‘police, judge, executioner’: Australia’s third largest ISP is being sued by several film studios and the Seven Network for enabling copyright infringement by failing to prevent its users from downloading pirated movies and TV shows.
iiNet, and the industry body, the Internet Industry Association, say ISPs should not be required to take action against any customers until they have been found guilty of an offence by the courts.
ISPs argue that, like Australia Post with letters, they are just providing a service and should not be forced to become copyright police.
Conversely, the TV and movie industry want ISPs to disconnect people it has identified as repeat infringers. There would be no involvement from police or the courts and the industry would simply provide the IP addresses of users they believe to be illegal downloaders.
“To shift the burden of proof and require that ISPs terminate access to users upon mere allegations of infringement would be incredibly harmful to individual internet users in Australia,” the online users lobby group Electronic Frontiers Australia said.
“Every citizen has a right of due process under the law and, when faced with having their internet service terminated, every citizen has the right to ask that the case against them be proven first.”
This is the first time that an ISP has been targeted in this way for simply providing internet connections that have been used, without their encouragement, to download material that infringes copyright. Previous successful legal actions, resulting in penalties of large fines, have been taken against sites and online services that directly encourage copyright infringement.
I’m very curious as to what sort of avenue of appeal there might be to have one’s name taken off the film/TV industry’s list of infringers should one be able to prove that they have got it wrong. At the moment it looks like they just want the ISPs and everybody else to take their word for it.
The fact that there wouldn’t be such a market for copyright-infringing downloads if the film/TV industry reformed its business model to acknowledge digital realities instead of creating artificial scarcity with unnecessary delays between releasing films onto DVD and broadcasting television shows in different countries is also worth examining. There is no need to delay when film canisters are no longer required to be physically shipped to other markets. Technology has changed, especially the technology available to consumers, and hanging on to traditional time periods between releases in various media and various markets just because it is traditional is guaranteed to cause consumer resentment.
I don’t personally do infringing downloads, although I confess that I do catch the occasional episode of favourite shows that others upload to YouTube when they first air overseas, so that I can discuss the latest episodes with other fans worldwide. As I always subsequently watch the same episode again when it airs here months later (in superior resolution), I feel absolutely zero guilt about this. The TV industry gets their expected eyeballs on their product from me.
There are lots of people out there like me, who are fans of shows with worldwide fandom communities who like to discuss them in online forums. Those of us in countries which traditionally delay TV broadcasts of popular US or British shows for months afterwards don’t want to miss out on these discussions when they are at their most current i.e. immediately after the show airs in its primary market. Why doesn’t the industry recognise that this demographic exists and offer a moderate-quality legal download, one that includes those commercials, as a separate income stream from the on-sale of their product to broadcasters in other markets? If they keep it only medium-resolution, so that the fans can get the narrative but not the best image quality, they’ll still get their sales of high-resolution DVDs to the diehard fans. Just ask Monty Python.
crossposted at Hoyden About Town
I posted about this a couple of days ago. I think Kim Weatherall’s is the best available summary of the issues involved. Most of the journalists reporting on it are treating it as the usual Battle of the Press Releases, whereas Kim is an IP/internet specialist lawyer and actually looked at the documents filed in the Federal Court.
At last we agree on something.
A relevant and timely posting on an issue that looks innocuous enough, but hints at so many more unpleasant aspects of human nature control-freakery in a new world.
Also, you’re dead right that there’s a market for free downloads of ad-supported content. Viewers don’t want to be tied to a network’s schedule any more. We want to watch things at the same time as our friends who live overseas, and we want to watch them in the morning or at lunchtime or on the tram on the way to work.
The ABC gets it — I watched Very Small Business on my iPhone thanks to a podcast option. Imported content is harder, but the first step is the “fast track” thing they’re doing (although sometimes they lie). When the time difference is minimal, then providing a downloadable version with localised ad content will be possible.
(Honestly, I don’t mind the ads. There are good ads that I even enjoy and watch again on YouTube.)
Its an attempt at a shake down a-la the Private copying levy.
Anyone here remember that one? An attempt to be paid an ongoing royalty based on blank CD sales.
Wiki has a good entry on this concept which was attempted here in the 80s. I meant that a tax on every blank CD went to a big “content provider” slush fund.
Didnt matter if you used that CD to put your own photos on, a few cents made their way to sony/microsoft/generic shit music producers. This is an attempt at the same deal by a different method.
http://en.wikipedia.org/wiki/Private_copying_levy
And dont get me started on the fees charged for things like hairdressers and dance studios annual fees for playing (often public domain) music to an audiance!
Like Robert I consume a lot of ABC content thru download vod/podcast, and a lot of other content to boot that I watch on my iPhone on my commute each day – they do get it.
And yes, I do pay for movie and music content too, I often use the iTunes movie store for a bit of mindless Hollywood rental (it’s approx $5/rental) fare and the delivery and quality is excellent.
To be quite honest I couldn’t be arsed looking for torrents most of the time and most of the stuff I like is often never available anyway, so I just want the studios/labels/producers to deliver the content I like to my device of choice at a price that is reasonable as soon as it’s released.
As for fast track, well for example I think Californication is a week late on Ten, that’s a start, but with digital delivery it really isn’t good enough.
As for the (Il)legalities, sadly it looks like this is all going to get worse before it gets better, it’s trench warfare as far as the big studios/labels are concerned, turning (and treating) your customers into criminals is not a good business strategy.
Can’t say I think the way forward here is to try and force ISPs to monitor the content downloaded by users and actively warn or ban users downloading pirated content. Attacking the sources of freely available pirated content is almost certainly going to pay more dividends then chasing people at the end of the byte trail.
I agree with broadly with what your saying tigtog.
But this;
“There is no need to delay when film canisters are no longer required to be physically shipped to other markets.”
Actually no. That is precisely how theatrically released films are required to be sent still. That will change. But currently most cinemas in Australia only play big, heavy 35mm prints. And the cost of striking them is a bugger. And transporting them around the world is a bugger.
The timeframes for the release of films has been greatly compresed over the last few years and will continue to do so. Soon, we’ll be able transport films on file. THat will be a great thing for bringing distribution costs down. But that’s not commonplace yet, especially in Australia. It’s the same with television. Your beloved Dr. Who gets physically shipped to the ABC via courier. Weird in the 21st century, hey.
Copyright’s about getting paid. It’s fair enough that people don;t want their work downloaded for free. On the other hand you don’t want it extended to the point where it stifles rather than encourages creativity.
.
This sort of thing is neither really. It’s more about firms trying to bend other firms to their will. This sort of consolidation is fairly typical of porporations. One irony of the corporation is that it’s a competitive unit that’s designed to restrict and reduce competition. The other is that it’s a creation of the law designed to eschew legal liability.
.
It’s a problem few seem really concerned about.
And what Adrien said. Copyright is about getting paid for what you make. It’s how I make my living. Downloading stuff people don’t want you to download is theft. But the trick is (and will be in the future) ensuring that the makers get paid for their IP as well as ensuring that people get to watch what they want, when they want. It can actually be a way for creators to find multiple revenue streams in new media as well.
I don’t think it’s a problem if it’s clips. Being able to link to a famous scene is useful. You just shouldn’t be able to get the whole thing.
There are copyright provisions involving fair use which allow you to use copyright material for the purposes for criticism for instance, so it’s not a completely blanket ban.
“Downloading stuff people don’t want you to download is theft.”
No, it’s copyright infringement.
Which is a form of theft.
all we need now is a slashdot car analogy…
No, it’s not a form of theft. It’s simply not. It’s not conceptually a form of theft, and it’s not legally a form of theft. It’s just not.
It’s an interesting debate, but it’s complicated enough without deliberately blurring the concepts involved.
I disagree, Fine, ethically as much as legally. It’s not that it’s a good thing, mind, but it’s not theft. I steal from you if I take something from you, not if I make a copy of something of yours. Plagiarism isn’t theft either, even though it’s wrong.
I appreciate that where your livelihood depends on copyright, it becomes a matter of more urgency. At the same time, it means you’re hardly disinterested in wanting to see infringement characterised as theft.
Thanks tigs and thanks robert – Kim Wetherall’s post is worth reading and the links from there.
I thought media companies were getting with the program and putting adverts into their online content or having minimal download fees etc.
I watch MSNBC shows like Rachel Maddow’s and endure even cheesier, even saltier, even fattier adverts. I suspect they will get around to working out how to narrowcast local adverts for the likes of me.
But it seems like it’s back to the future with this action, and as some bloggers have mentioned – lets see them take on Bigpond and their legal teamz.
But you are taking something from me – the ability to make a living from my labour, because I make a living from selling my intellectual goods.
And of course I’m not disinterested, but that doesn’t exclude from a debate.
And to be clear, I think the copyright law is too restrictive and it affects me adversely as well because I have to be very careful to ensure that I don’t infringe on others’s copyright. I’ve also made work using creative commons license to ensure that anyone can use it for free, when I’ve thought that’s appropriate. But if it’s the use of the word ‘theft’ you object to, I’m not fussed.
Yes, it’s complex. One of the ethical considerations that doesn’t get much discussed is that of the rights of the people in front of the camera. I’m talking specifically about documentary here. Often a documentary will get made because the subjects trust a specific filmmaker to tell their story. They don’t want other people to do mash/re-edits etc and are horrified at the thought of anyone having access to material.
I torrent shitloads of ABC stuff. The way I see it, I’m a virtual sales rep for the corporation – but ultimately I’m flogging brand awareness and brand reputation as opposed to tangible merchandise.
The great thing about my hobby is that I find myself blowing more and more money on ABC products. Did I mention that proceeds go straight back into the production budgets?
‘And the antelope EAT the grass, Simba…’
The great thing about media globalistion is that we truly are all buskers now, Big Content most importantly of all.
don’t expect the viewers to be happy with a distribution method that requires us to consume a 1/3 of the running time with a bunch of ancillary claptrap.
most of the ads are just pathetic (SBS with their phallus issues is the absolute worst, but anything “brand power”… look away to save your sanity). if they had the show’s 2nd unit shoot the ads, at least they would fit in a bit better. that bernie fraser ad for super recently was surely a work of sabotage put on to send people across to other stations.
rant aside, without a carrot, this just puts pressure on the audience to find ways to do their downloading in ways that are free from corporate snooping.
i believe software of this sort has been written a number of times, but always lacked a critical mass?
Fine @ 18 – an individual downloader is not depriving you of income if they otherwise would not be able to afford to purchase a copy, is unable to purchase a copy (eg say when a book is no longer in print or simply not for sale in a region), or simply would choose not buy a copy if they had to pay for it. In that case although they are better off, you’re no worse off if they have a copy than if they don’t.
HR @ 19 – the ABC has to be the best producer in Australia of content which they make available for download for free from their website. I don’t bother recording some of their programs
Oops hit submit too early. Meant to say I don’t bother recording some of their programs off live tv now. Just watch it on the internet when I want it.
Chris, I’m aware of that and I have no problem with that. It’s pirating that’s the dodgy thing. And all the lovely free stuff you can download from the ABC – well, you can expect to pay for it soon.
I wonder if they’ve timed this lawsuit to coincide with our Minister for “What’s Good for You Kids” (Communications) attempt to filter all “teh webs” at ISP level?
That way they can try to get torrent sites added to the blacklist and have the legal “win” to force the ISP’s to put any torrent providers (who are actually the users) on the blacklist.
Instead of having to sue each of them individually they can just lean on The Minister for “We Never Get Anyone With a Clue in This Job” (Communications) and effectively kill that users access forevermore.
No lawyers, no cost, no right-of-appeal (unless you happen to know the Minister of course).
B$#stards.
On a different note – well done Python for getting their stuff out on youtube.
Fine @ 23 – I really do hope the ABC keep their open policy. Unlike the commercial channels they don’t have advertising revenue to lose and if they only leave copies up for a month or so it won’t really impact their dvd sales. I’d guess a big issue for them however is cost of bandwidth.
If they don’t keep the open policy, well, the great advantage of digital tv transmission is they provide an excellent quality (no noise, HD higher resolution than DVD), unencrypted data stream that can be saved directly to hard disk.
I might also add a little counter arguement to Fines complaint about copyright breaches.
When does my right to a piece of music expire? If i have brought a CD of music do I only have the right to listen to it for the life of that CD?
If the music industry wanted they could have set up a customer database years ago with individuals music puchases recorded, and copyright access assigned for each legal purchase.
Im in the position (due to an odd taste in music) of having owned a large amount of music in various formats over the years. Much of that is inaccessable to be now due to tech changes and decay of the recording material.
Yet I have about 250 songs “illegaly” downloaded, 99% of which I will have owned in various formats over the years.
Should I be prosecuted for this?
You shouldn’t be prosecuted whether the figure’s 99 per cent or one per cent, Mole, so long as you aren’t redistributing them for commercial gain.
Why are the Seven Network involved – nothing worth downloading there
I agree with Mole and I turn my vinyl in mp3′s with some nifty software – this is apparently not fair use either (I believe)
The major music companies and television stations just play a handful of items over and over – if you like more obscure films or music – they aren’t interested
Ideally, in a few years we could have instant access to any film or song through a cable style service – no dumb packages
Pirating is seizing an Oil tanker off the Somalia coast with small arms and holding the crew and ship and oil for a ransom.
Downloading a thousand crappy MP3s off the net or downloading a movie recorded on a mobile phone in a theatre or a tv show shown last week in usa is not piracy.
The assumption that everything downloaded for free is a purchase forgone is not only bad economics it is wrong.
There’s also the bit that a few have pointed out – a lot of downloaders have already paid for the stuff several times. Just one example I have owned two vinyl copies of WAR’s Live Double album, mainly, but not only for Cisco Kid and Slippin Into Darkness. One was stolen, the other one half of it was stolen. I have also bought the re-issued CD of the album. I’ll also happily download it “illegally” anytime I need to thank you.
People sound a bit defensive about this issue round here.
I’m not suggesting that downloading is always ethically wrong and that you must be purist about such things. It can be of benefit the creator of the work for it to be downloaded and spread around. And often it cetainly it often doesn’t do any harm to anyone.
What I’m arguing, is what I think of as the totally unremarkable point, that the creator of intellectual property has the right to make money out of that creation. And that ethically that’s something that should thought about before downlaoding, pirating, ripping, stealing, appropriating etc said goods.
Although why anybody would want to download a movie recorded on a mobile phone is totally beyond me. And it’s not “illegal”, it’s illegal.
Never in our history has so much money been made out of copyrighted materials (principally by record and movie companies, not the actual creators, but that’s another story) as in the period 1920-2000.
It was an aberration, it’s over, and it will never return. Prior to it we only had live music or theatrical performances for a negotiated fee and sheet music or script sales for revenue streams. Physically embodied recordings changed that, but are becoming obsolete. What do we do now, recognising that “protection” of digital files is practically impossible and only arguably desirable?
Whatever it is, it probably won’t be as lucrative for copyright owners, and it certainly won’t for very large record labels and movie studios. To think that it somehow could be is to deny reality – a surefire way to ensure that whatever the new arrangements, you will be one of the losers.
I broadly agree with you – not that they have the right to make money, but to try to make money out of selling it. But its important to get the legal framework right so its fair to both parties and I don’t believe thats currently the case.
For example if someone refuses to supply a product (eg a book out of print), then people should have the legal right to create a copy – perhaps with some statutory fee to the copyright owner. Even better would be the right for 3rd parties to sell and package the content if the original copyright owner refuses to continue to do so. And with the increasing amount of digital content which for many people is difficult to transfer from device to device as technology changes so quickly we need to look at the right to source equivalent copies, for people to have the conceptual right to move their content, even if its not copied from the original they have. And as people have mentioned previously the right to recover data from another source in the case of say hardware failure.
Very true. And for many years recording programs on your VCR was illegal and it was illegal to copy songs on your CD to your iPod, it just was never enforced.
All I was arguing was that it wasn’t theft, and that is the case both legally and ethically. It’s something else which is also not right, and also not legal: copyright infringement.
As for the right to make money out of what we create: this applies only for certain kinds of creators and certain kinds of creations. I’m almost tempted to call it a privilege that what you create can be considered your property in the first place, given the limited domains in which this is the case.
The substantive reason for copyright, for me, is that for some people intellectual property is a livelihood, and copyright is a mechanism that can ensure compensation for certain kinds of work which aren’t compensated through other mechanisms.
In Australia (until recently I think there was an amendment)it was illegal to make a copy of a CD I owned. In fact most MP3s were illegal as it was illegal to copy the CD to create an MP3 by compression. And as mentioned it was also illegal to make video copies of tv programs.
I’m not defensive at all – in fact in my mild mannered way I’m aggressive about the bullshit around copyright. The likes of Disney built their immense wealth on using stories without copyright now they will extend copyright for years on those very stories they grabbed.
fine – I’m not clear what your work is – maybe you mentioned it somewhere – but I’d be interested to hear how copyright is central to your earning capacity.
FDB – It was an aberration, it’s over, and it will never return.
.
Maybe. I think the big holders of intellectual property are trying to sew it up so the world will have to pay thru the nose for everything. On the other hand artists seem to be tenuously moving toward the digitally based sole trader thing again so maybe.
.
Klaus – I steal from you if I take something from you, not if I make a copy of something of yours.
.
What if you make a copy of my unpublished novel that no-one’s seen and put your own name on it and sell a million copies (’cause it’s a real page-turner Tom Clancy piece of shite)?
.
Plagiarism and copyright infringement. And theft.
Francis Xavier Holden, I mainly produce documentaries mainly for the broadcast market. This means that I’m a copyright holder in those productions along with the investment bodies. The broadcasters generally just pay for a license fee to screen the program, but don’t take a share in copyright.
I make money from production fees, but often this is sunk back into the project. Copyright effects the ‘back-end’. So, I make money from my copyright when it’s sold to overseas broadcasters and into other markets such as the educational market and retail DVDs. I also make money via Screenrights which pays me royalties when it’s screened on domestic television. Educational institutions can copy it off the broadcast but they have to pay a royalty fee for it. The good bit about that is that the production company (me and my mates) get to keep those royalties and not return any to institutional investors. So money from copyright is a major income stream for me.
And yes, Disney is an arsehole of a company.
Legally it’s theft, Klaus, whether you agree or not. It is somebody else’s property. You appropriate it from that person without that person’s permission, without the intention to return it and you convert it to your own use. At law that is theft. It doesn’t matter that it is intellectual property as distinct from any other form of property. The law is formed on statute and case law, not on the basis of your personal opinion.
True enough for the application of criminal law.
Absolute nonsense when applied to commercial relationships, which is just what an ISPs relationship is with its customer.
fine – thanks for that explanation. Would it be right to say that illegal downloading by individuals say on torrent wouldn’t really effect your income at all? I’m guessing there is little demand from individuals for your product and you don’t sell direct to them anyway?
You mean like this, GregM?
-NES- lol
-NES- I download something from Napster
-NES- And the same guy I downloaded it from starts downloading it from me when I'm done
-NES- I message him and say "What are you doing? I just got that from you"
-NES- "getting my song back f*****"
.
There’s an IRC quote for everything…
“What if you make a copy of my unpublished novel that no-one’s seen and put your own name on it and sell a million copies (’cause it’s a real page-turner Tom Clancy piece of shite)?”
Well, that’s a very particular sort of case, isn’t it? And I’d agree, something much closer to theft, especially since it may actually involve theft, depending on how they get the manuscript. Although the millions who buy the book aren’t guilty of theft.
Note that the thread is about ISP’s being expected to prevent copyright infringement through the downloading of movies and tv shows. Making unauthorised copies of things already broadcast is copyright infringement, but it’s not theft, and involves no component of theft.
“The law is formed on statute and case law, not on the basis of your personal opinion.”
My understanding was that the law saw it as copyright infringement, not theft. Is this not the case? I’d be keen to see some legal opinion on torrenting, for example.
FXH- you would be right in saying that.
Well, except to the extent that downloading of your documentaries might affect demand for the broadcast versions, and lower the price you can get.
Yes, it would if that were the case – but there’s not a great demand for docos using bit torrent. There is some demand from individuals but it’s not huge. But of course, that can change.
Klaus k, I don’t know exactly what the position is on bit torrent, but I imagine it would be illegal. Copyright law makes no difference between the real world and the virtual one. Or as my lawyer taught me, ‘if there’s something that you think is worth using, then there’ll be someone who thinks it’s worth paying for’.
Copyright law prescludes you from using a ‘substantial’ piece of someone else’s property, but it doesn’t define ‘substantial’. What’s clear is that it’s nothing to do with length. The opening chord of ‘A Hard Day’s Night’ is substantial because it’s instantly recognisable. Basically, it comes down to if something’s recognisable, it falls into the category of being ‘substantial’. If it’s ‘substantial’, you’re probably breaking the law.
I’ve had to pay for rights to use two lines from a book. And I’ve had to pay three different publishers in three different territories to get world wide rights for those two lines. Why bother doing this? Because I have to sign a guarantee when I on-sell my property that I’ve purchased all underlying rights.
I have no doubt torrenting is illegal, I’m just interested in exactly what way it is illegal. GregM seems to know more about the law than I do, hence my question. I’m prepared to admit I’ve been operating under false assumptions if that turns out to be the case.
Just to be clear, though many here probably understand this already, the use of bittorrent tools is not illegal. There is also much legal content out there, specifically distributed on the torrent networks by the copyright owners. Its relieves many of the issues with distributing large files to many people.
There’s been a few cases recently of server problems when the government has released important, but relatively large reports. Making them available as torrents as well could really help. If they’re not already doing so its something organisations like the ABC should look at for distributing the video they currently have on their website. Why pay for all the bandwidth when you can get your users to help
klaus k – I have heard that due to the weirdness of Australian law that its not the downloading which is illegal, but the uploading (as they are the ones making the copy). But its important to remember that inherent to the torrent protocols is that you both download and upload to others. [Standard disclaimer about not being a lawyer and this could all be wrong].
“Legally it’s theft, Klaus, whether you agree or not. It is somebody else’s property. You appropriate it from that person without that person’s permission, without the intention to return it and you convert it to your own use. At law that is theft.”
GregM, I am eager for a reference to a text or law journal article that supports this. I’m not a lawyer, but in the law courses I’ve taken and all the reading I’ve done, there’s been a clear distinction between the legal handling of real property and intellectual property. Copyright infringement, for instance, is not usually a crime (unless done for trade or commercial gain) and the remedies are civil.
d
chris – it’s perfectly normal sometimes to download only with torrents, sometimes because there is no one wanting an up, however the ethos is that one should give to receive and iirc the protocol often gives a greater download speed if one is uploading at the same time.
klaus – i think one of the issues with torrenting – torrenting itself isn’t illegal and theres a huge amount of legal stuff available on torrent, eg live music sanctioned by bands and artists, Open Source Software etc – is that its hard /harder or impossible to tell which bits and pieces belong to what – at the ISP level. Ther is also no central server to identify as holding all the copy – it’s all coming in dribs and drabs from peoples PCs at home all over the world.
FXH – agreed, but you only have to upload one block to infringe. And yes, if you don’t upload (say you turn it off or can’t tunnel out behind a firewall) then the way it works is that your download rates are going to be very poor.
Thanks all. I had assumed there were problems with both uploading and downloading as features of torrenting. And yes, my understanding is that functional torrenting involved doing both.
I would be interested if anybody could confirm the point that Darryl makes in response to GregM @ 48, or generally clarify this area of the law further.
“I have heard that due to the weirdness of Australian law that its not the downloading which is illegal, but the uploading (as they are the ones making the copy).”
No, you’re also making a copy when you download it. But it’s not worth the time and effort to drag someone through courts to get 5cents of damages at the end. You’ve got a better chance of a decent payout of you go after the distributor, and if they’re big enough you might get exemplary damages and/or the DPP to proceed with criminal infringement.
BTW, I got a concept wrong in my previous comment – Real property is land. I should have written ‘chattels’.
d
Here’s the neatest authoritative description I can find of the difference between copyright infringement and theft. It’s from the US Supreme Court’s majority decision in Dowling v. United States (473 U.S. 207):
That’s a US decision and the details won’t map perfectly to the Australian regime, but that excerpt pins down the issue of infringement v theft very nicely.
The whole decision is available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/473/207.html
d
“Legally it’s theft, Klaus, whether you agree or not. It is somebody else’s property. You appropriate it from that person without that person’s permission, without the intention to return it and you convert it to your own use. At law that is theft.”
I suggest you brush up on the relevant laws.
It is most definitely not considered theft under Australian law. It is considered copyright infringement. And copyright infringement is not even a criminal law. It’s a civil matter. Unlike theft.
Someone wanted a Slashdot car analogy, I’ll give them one.
Theft: I bust in to a car dealership, hot wire a Ferrari and drive it out. The car dealer no longer has a Ferrari but I do.
Copyright infringement: I bust into a car dealership, make an exact replica of the Ferrari and drive it out. The car dealer has a Ferrari but I have one too. I’m not liable to be prosecuted for theft since there was no property loss. However, I am liable to be sued by the copyright holder of that car since I took it and copied it without paying and acknowledging the people who built and designed it.
“However, I am liable to be sued by the copyright holder of that car since I took it and copied it without paying and acknowledging the people who built and designed it.”
Actually, there’s not likely to be any copyright infringement in copying a car. Design registration and possibly trademarks (and maybe some passing off) but not copyright.
d
And a pile of patent infringements too most likely.
Well, Oz did say analogy.
The point which I think we all agree on is that while theft deprives the legal owner of any usage, and gives exclusive usage to the one who steals, copyright infringement does not deprive the legal owner of usage but infringes their exclusivity use.
Here’s another analogy. Someone goes into JB Hi-Fi and nicks a DVD of a film they want. They’re stealing the DVD from JB Hi-Fi. But there also depriving the copyright owner the income they’d derive from the sale of that DVD. Its not called intellectual property for nothing.
You may say that doesn’t matter if the thief wouldn’t have otherwise purchased the DVD. But of course that defence wouldn’t stand up in court. So what’s the difference betwen the real world and the virtual world?
I think that analogy would be closer if the person went into JB and burnt a copy of the DVD, placed the original back on the shelf and then left the store. The person has not cost JB hifi a cent, nor deprived them of the ability to sell the original to someone else.
Fine @ 58 – Wouldn’t JB Hi Fi be responsible for paying the copyright owner for the DVD even if it was stolen?
Darin, I don’t really get your point. JB-Hi Fi would never have the ability to sell the orginal of anything. They have lost the ability to sell the object that was stolen. The copyright owner has lost money on the theft.
Chris, no JB Hi Fi don’t have to pay the copyright owner if it’s stolen.
“Here’s another analogy. Someone goes into JB Hi-Fi and nicks a DVD of a film they want. They’re stealing the DVD from JB Hi-Fi. But there also depriving the copyright owner the income they’d derive from the sale of that DVD. Its not called intellectual property for nothing.”
The Copyright owner has no claim against the thief because there is no unauthorised copying, so no infringement. Any royalties payable to the copyright owner is a matter between the copyright owner and the publisher and the treatment of lost/broken/unsold copies should be addressed in the licence agreement. There’s absolutely no copyright infringement in this example.
Fine @ 58,
Wouldn’t JB have already paid for the DVD and thus all other entitlements would be settled? If JB don’t sell something it just hurts their bottom line, everyone else has been taken care of.
It’s a bit like say for example the new AC/DC album going triple platinum here. Do 210,000 people own a copy of it? Of course not. The band still get paid for those 210,000 though. That’s how many copies the stores have bought and are stuck with the unsold copies until they start trying to unload stock in sales. Hence why ‘Black Ice’ will be about $10 a copy this time next year.
“Chris, no JB Hi Fi don’t have to pay the copyright owner if it’s stolen.”
More to the point, retailers *never* pay copyright owners. Retailers pay wholesalers, wholesalers pay publishers and publishers pay copyright owners (give or take).
Of course, it’s pretty rare for copyright holders to ever get any money from the publishers, who’ll deduct admin fees, advertising costs, restocking levies, and anything else they can think of, before giving the artist one red cent.
d
No Jacques de Molay, the contracts don’t work like that. The retailer doesn’t pay up front. My experience is that the copyright holder (me) gets 30% of the retail price.
Darryl Roisin, maybe you’re talking about music, which I don’t know about. How it works in film/tv is that the retailer pays the sales agent and the sales agent pays the copyright holder. As I said above, I get about 30% of the retail price, which is a handy bit of money. I’ve never been in a position where I’ve received nothing.
So you have to wait until it moves off the shelf to see your money, Fine? That sucks.
That’s right klaus k. The cheque turns up every 6 months. The terms of trade aren’t great.
Just to add, if you have a highly commercial product you can negotiate better terms of trade and sales agents will pay up front. But most documentaries don’t fall into this category.
On the other hand it encourages the stocking of less-than-certain sales prospects, which I’m sure we’d all agree is good for cricket in the long run.
Yep, I’m not complaining’, just statin’.
” How it works in film/tv is that the retailer pays the sales agent and the sales agent pays the copyright holder. As I said above, I get about 30% of the retail price, which is a handy bit of money. I’ve never been in a position where I’ve received nothing.”
OK, you’re more like a self-publisher. But there’s still no copyright infringement in your example of someone stealing a DVD because no one is making a copy.
d
Daryl, you’d make a great lawyer. What I’m pointing to is actually an ethical issue as it applies to illegally downloading material and stealing stuff from a shop. The figure in the discussion that seems forgotten is that of the creator of the material. The question I ask is when is it right, or wrong, to do something which deprives that creator of their hard earned income?
There has been a lot of legalistic precision in here, but for me the point is to expose the question-begging involved in the formulation “IP infrngement is wrong because it is theft and theft is wrong”
Sure, but there’s a whole lot there to be unpacked. Does something enter the public domain after it’s earned a million dollars in profit, for example?
More seriously, you have to demonstrate to what extent the common copyright infringements do deprive the creators of income. All we can say with confidence is assuming that every infringement is a sale foregone is a gross overestimate while saying that no infringements have an impact on income is a gross underestimate. (And that’s before we consider other reasons why creators might not get much more income, as discussed by Darryl.)
What is the question that is being begged here, Martin?
That theft is wrong?
By asserting that IP infringement is theft, the question is begged about how and why IP infringement is wrong. As has been articulated above there are significant differences between IP infringement and theft, and so one can’t rely on this assertion – you need to provide actual justification.
I’m not arguing that IP infringement is not wrong, but as I said, for me the point of this discussion is to open up exactly how and why such actions are wrong and what kinds of sanctions should be available.
The incorrect claim that IP infringement is the same as common theft acts to shut this discussion down.
GregM @ 74 – to me the question is that implication that IP infringement is equivalent to theft.
Fine @ 72 – you won’t have any argument from me that copyright infringement is illegal. However I believe that the laws behind copyright are in urgent need of review but if you work from the assumption that any copying without the permission of the copyright owner is equivalent to theft, we won’t get the reforms that we need.
Intellectual property (copyright/patents etc) is a pretty artificial protection granted by government legislation – it doesn’t really compare well with say property rights, because IP infringement does not deprive the owner of use of their IP, unlike when property is stolen.
The aim behind IP laws is not so that people can make money, but it is to encourage the creation of content and more generally the development of ideas. The changes in technology over the last few decades have radically changed how easily people can build upon existing IP as well as making it much cheaper for content creators to create copies. And in many ways the reuse and development of ideas is occurring at a much faster rate.
So we need to review rights given to copyright holders such as the length of copyright, fair-use rights, patent rights etc. We should be optimising our laws to maximise the creation of content and ideas, not the profits of copyright holders. And FWIW as a software developer and someone who has had patent approved, I too rely on IP legislation.
There’s one tenuous argument as to why IP infringement is a kind of theft: it deprives the original owner of the ability to derive income if the copyrighted work is available for free. It’s the angle that the RIAA in the US take (by asserting phantom losses based on the number of copies of downloaded albums for instance).
It’s probably legally defensible, but is a perversion of the original intention of copyright (which was supposed to force people to publish their works so that they would not be withheld from public knowledge). The problem boils down to an inability to collect licensing fees – something that could be addressed with a universal licensing scheme like we used to have on blank cassettes and CD’s in some countries.
However, the move of most of the commercial, non-Apple retailers of music to unprotected MP3′s seem a lot more sensible (emusic first, now Bigpond music and 7digital for example) – people generally value convenience over price if the price isn’t onerous (I certainly do) so finding something relatively obscure quickly rather than having to wait days for some torrent to finish is a massive inducement to shell out cash for said music. It’s the reason that those proper indie CD places were less affected than K-Mart for cd sales, but the record companies didn’t see it.
“What I’m pointing to is actually an ethical issue as it applies to illegally downloading material and stealing stuff from a shop. The figure in the discussion that seems forgotten is that of the creator of the material. The question I ask is when is it right, or wrong, to do something which deprives that creator of their hard earned income?”
Fine, I’ve not defended copyright infringement in this thread and I don’t think you’ll find I’ve ever gone further than advocating a broad ‘fair use’ defense against infringement. We need more artists to help us make sense of the world around us and I’m
I entered this discussion to argue the point that copyright infringement is not theft and the quote from Justice Blackmun I posted explains the distinction clearly. There are different sorts of property and owners/possessors have a variety of rights. Trying to reduce every infringement on those rights to “theft” leads to diabolical misunderstandings, muddled thinking and bad policies and laws (oops, my idealism is showing).
d
Oops. Hit ‘submit’ before finishing a thought:
‘We need more artists to help us make sense of the world around us and I’m loathe to advocate for radical changes that might make their professional lives harder than they already are.’
or something like that.
d
Yes, IP is more complex, because the creator still owns and possesses the product before/after/ irrespective of/ any so-called theft. Unlike objects, which disappear as a result of being nicked.
The better focussed question is who has the rights to profit from the intellectual property. Society has always (that ALWAYS, without exception) held that there’s a balance between the creators right to profit (which invites incentive to produce wondrous things) and society’s right to benefit from the creations of the society; that supported the creator’s education, health etc.
That’s why copyright is limited to life of author, plus 70 years. The US recently made us increase that from 50, under the FTA. Obviously, we need to be able to read Shakespeare and Dickens without some idiot descendant 84 times removed slapping a writ down.
Even more so: Patents only last 20 years, registered designs a mere 10 years. Only trademarks have the potential to be perpetual.
The logic is an attempt to balance individual creator’s rights against social needs (eg for groundbreaking medicine at non-extortionate monopoly prices).
And sometimes compulsory licensing regimes make an owner provide benefits before that time is up.
Whereas you can hand your house down, in theory, until time ends.
So, next time you see a DVD declaim “ITS TEH SAME AS THEFT!”; bear in mind that as a society, we don’t actually see it quite like that in practice, and never really have.
In the software industry 20 years is way too long – it might as well be forever. Patents grant a monopoly where even provable independent invention is not a defence against infringement. Its easy to infringe without even knowing that you are doing so.
Something along the lines of 5-7 years would be more appropriate giving the inventor sufficient time to use the exclusive rights to make money without unduly holding back progress.
I quite agree Chris. Suffice to say, for the purposes of this thread, western legal regimes put a time-limit on the “propertied” nature of invention, for good reasons.