Debunking The Faulty Premises Of The Pirate Bay-Criminalization Treaty

from the this-again? dept

The entertainment industry's lobbying efforts for stronger intellectual property laws is incredibly sophisticated. The more you follow their efforts, the more impressive you realize they are. Every time one aspect is somehow blocked, another almost immediately pops up somewhere else that has been simmering below the surface for months. While many more are aware of efforts to directly lobby politicians to change copyright laws, what gets less attention is the work that's put into various "international trade" treaties. Two years ago we wrote about how this was a favorite tactic of the copyright lobby. They basically write up a treaty for the government, who then signs the treaty with a bunch of countries, without anyone realizing all of the details. Then the copyright lobby starts using the crutch that all of the countries involved have to strengthen their copyright laws in order to "comply with our international treaty obligations."

Kevin Stapp writes in to let us know about the latest such proposed treaty that has been leaked to Wikileaks. The document is (not surprisingly) a wishlist for the entertainment industry and, as Wikileaks notes, it was distributed only to pro-stronger-copyright lobbyists for comment, and not to any consumer rights groups or those who recognize that stronger copyright can be quite damaging. Slashdot talks about what Wikileaks calls the "Pirate Bay Killer" clause that would force countries to criminalize significant facilitation of infringement, even if it's not for profit. Why countries should be criminalizing what is, in actuality, a business model question is never explained.

However, there are many more problems with the paper, including the fact that many of its most basic assumptions are either untrue or unproven. When you base an entire international trade treaty on questionable (or outright incorrect) assumptions, bad things will result. It starts out by noting:
The proliferation of infringements of intellectual property rights ("IPR") particularly in the context of counterfeiting and piracy poises an ever-increasing threat to the sustainable development of the world economy
Except that two recent government studies have shown no such thing. Both the GAO and the OECD have noted that both the magnitude and the impact of counterfeiting is greatly exaggerated by lobbyists. The paper goes on:
The consequences of such IPR infringements includes (1) depriving legitimate businesses and their workers of income; (2) discouraging innovation and creativity; (3) threatens consumer health and safety; (4) providing an easy source of revenue for organized crime; and (5) loss of tax revenue.
Let's go through those one by one. On point (1), this is simply untrue. As we've pointed out in the past, there's no such thing as "depriving" someone else of income -- otherwise convincing someone to go to a pizza shop instead of a deli would be considered a crime (you've "deprived" the deli of income). Where money goes is a marketing issue, not a legal one. If companies are having trouble convincing people to pay them for their products, that's their business model problem. Nothing is being taken from them.

On point (2), this is also simply untrue. Study after study have shown no corresponding decrease in innovation or creativity when intellectual property laws are weakened (or even removed entirely). In this day and age when so much creativity takes place outside of traditional intellectual property realms, it seems ridiculous to even suggest that creativity is somehow impacted.

The closest the paper comes to having a reasonable point is on point (3), but that really only applies in very narrowly defined cases (specifically involving dangerous counterfeit products that may not be safe). Yet, that's an extremely narrow area, and can be dealt with via other means, including anti-fraud law. And, when dealing with international trade issue, it seems like the sort of thing that ought to be handled by customs, rather than with some big intellectual property treaty.

Point (4) is a favorite claim by the industry, but it's never been backed up with any significant evidence. I'm sure there are some organized crime groups that traffic in counterfeit products -- but again, that can and should be dealt with by other laws. Strengthening intellectual property laws to combat organized crime is a misuse of intellectual property laws.

The question of tax revenue (5) is also a favorite of the industry that relies on only counting the ripple effects in one direction. That is, it assumes that the lost tax dollars come from things like the sales tax on software products that would be bought, but fails to count the economic growth and additional tax from businesses who are able to more rapidly grow the economy through the use of cheaper software.

So the entire underpinning for the argument in favor of these "trade agreements" is a house of cards (if that much). But for those who aren't all that familiar with the space (or whose political campaigns are funded by the entertainment industry), these claims are all taken as a given. That should be seen as a serious problem.


Reader Comments (rss)

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  1.  
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    Anonymous Coward, May 23rd, 2008 @ 6:41pm

    The problem here is just this, the rebuttle to this new legistlation treaty cluster-F*** of meaningless dribble, is on a blog and will likely never be seen by the people making the ulitmate decisons.

    Those of us who are informed are rarely in the posiiton to do much other than shed more light on people whom lights have already been shone. To that effect the "collective effort of truth exposure" is limited to a bunch of unorganized individuals, and there-in lies the problem.

    Until all the people who voice out against such isntances as this organize themselves into a singular entity, very little change will ever come about. So, if you and your friends want to see something change, speak the hell up about it and direct that voice of opposition directly into the face of your opponent, because unless your screaming directly at someone, they'll always ignore you.

    Get involved, Get organized; Get results.

     

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  2.  
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    some old guy, May 23rd, 2008 @ 7:06pm

    so really..

    Who do I have to kill to get this shit to stop?

     

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    Bah who needs one, May 23rd, 2008 @ 7:17pm

    "The question of tax revenue (5) is also a favorite of the industry that relies on only counting the ripple effects in one direction. That is, it assumes that the lost tax dollars come from things like the sales tax on software products that would be bought, but fails to count the economic growth and additional tax from businesses who are able to more rapidly grow the economy through the use of cheaper software."

    Not to mention that the money that the consumer doesn't spend on the software they almost certainly will spend on something else, and incur sales tax on that item. Each person tends to have a certain amount of disposable income, and if they spend less of it in one area they spend more somewhere else.

    Even if they socked the difference away in savings, the bank would invest it somewhere where it would eventually get taxed in some other manner.

    All of this is leaving aside the questionable nature of sales taxes in the first place; the combination of income and sales tax seems to be a form of government double-dipping, or more if the supply chain is long enough, and sales taxes are regressive, having no less impact on low-income people than on high-income ones. Given income tax, the only other taxes directly affecting private individuals should probably be luxury taxes on narrow categories of items most people can live without. Recreational drugs (e.g. alcohol and tobacco products) come to mind. SUVs and large single purchases of fuel, too.

     

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  4.  
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    Anonymous Coward, May 23rd, 2008 @ 7:18pm

    Re: so really..

    Unfortunately morons replicate themselves at a rate the rest of us can never compete with, so to answer your question; yourself. It's simple mathmatics.

     

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  5.  
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    Jake, May 23rd, 2008 @ 7:30pm

    Re:

    I'd also suggest that only a relatively small percentage of people actually understand that there's a business model that doesn't embrace file-sharing; after all, the idea is superficially counter-intuitive unless you have a basic understanding of economics, elementary computer literacy and above-average intelligence.
    What we really need to do, in fact, is elect as many computer nerds as possible into high political office.

     

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  6.  
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    Kevin, May 23rd, 2008 @ 8:01pm

    disagree

    depriving somebody of income by convincing them to go to the pizza shop instead of the deli is most certainly a marketing issue, to put it in terms of the entertainment industry, somebody convincing another to buy game A instead of game B is not what is under scrutiny. What is in fact being addressed is when that somebody steals the deli-meats, bread, sauces etc. and then makes an exact replica of the sandwich and gives it to another (with or without profit) would be depriving this deli of income, the same rings true with the entertainment industry. They have spent a substantial sum of money creating a product, and the return on that investment comes in the form of people buying that product.
    Example, company A makes a music album and sells it in CD form, person b buys it for 10 dollars, makes copies of it, and sells 10 copies for 1 dollar. Company A has now lost 100 dollars of revenue.

     

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  7.  
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    Drawoc Suomynona, May 23rd, 2008 @ 8:29pm

    Re: disagree

    You completely miss the point that if the cd was only available for ten dollars, not all of the people who bought it for one dollar would buy the full priced version. Also, the music industry cannot be compared to any one company, it has its own subset of economics, and also, has anyone realize that only the corporate big-wigs seem to care? the artists need to lose the label and let loose their infinite good to sell their scarce goods.

     

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  8.  
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    MLS, May 23rd, 2008 @ 8:50pm

    The Pirate Bay Mentality

    Say what you will about media companies, but in no reasonable way can their actions to try and secure legal protection for their products be deemed morally reprehensible. The same cannot be said of Pirate Bay and others of similar ilk.

     

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  9.  
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    YAAC, May 23rd, 2008 @ 9:12pm

    Re: The Pirate Bay Mentality

    That would hold true were they not trying so hard not only to protect their current properties, but to lock the system down such that no future properties could be anything but theirs. TPB is rather like this century's Hollywood/Disney at this point. Fostering a new medium by damaging the old. So... While we go about condemning the various sites out there aiding in copyright infringement and whatnot, when are we going to get to penalizing the entertainment industry for their actions in the early 1900's? Is getting successful all you have to do to be right?

     

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  10.  
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    MLS, May 23rd, 2008 @ 10:14pm

    Re: Re: The Pirate Bay Mentality

    Unless these business conglomerates are breaking the law (antitrust, interference with the contracts of others, etc.), they are playing by the rules (albeit some of the rules are a bit overreaching and they are playing business hardball). In stark contrast, TPB is saying "srew the rules, we will do what we darn well please".

     

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  11.  
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    Anonymous Coward, May 23rd, 2008 @ 10:23pm

    Re: Re: Re: The Pirate Bay Mentality

    Screw the rules, they're too complex. Let's simplyfy them and make things eaiser

     

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  12.  
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    Rekrul, May 23rd, 2008 @ 10:27pm

    What is in fact being addressed is when that somebody steals the deli-meats, bread, sauces etc. and then makes an exact replica of the sandwich and gives it to another (with or without profit) would be depriving this deli of income, the same rings true with the entertainment industry.

    Then why isn't it illegal for fast-food chains to sell "breakfast sandwiches" that are virtually identical to a McDonald's Egg McMuffin? Why can I go to any supermarket and buy frozen breakfast sandwiches that contain all the same ingredients as an Egg McMuffin? Granted, they're not called "Egg McMuffins", but they're the exact same sandwich.

     

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    Anonymous Coward, May 23rd, 2008 @ 11:12pm

    Re: The Pirate Bay Mentality

    Say what you will about media companies, but in no reasonable way can their actions to try and secure legal protection for their products be deemed morally reprehensible.
    That's an old and bogus argument. Slave owners used to say the same thing when slavery was legal in the US. It was morally reprehensible nonetheless.

     

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  14.  
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    Anonymous Coward, May 23rd, 2008 @ 11:13pm

    Re: Re: Re: The Pirate Bay Mentality

    In stark contrast, TPB is saying "srew the rules, we will do what we darn well please".
    No, TPB is operating within their home law, i.e. "the rules". Sorry if you don't like their rules.

     

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  15.  
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    Ranting Lunatic, May 24th, 2008 @ 12:54am

    Re: disagree

    "What is in fact being addressed is when that somebody steals the deli-meats, bread, sauces etc. and then makes an exact replica of the sandwich and gives it to another (with or without profit) would be depriving this deli of income, the same rings true with the entertainment industry."

    Correct, in your analogy if someone were to steal the components that produce the good itself you can draw a parallism. However, when people pirate digital media they do not steal what made the product, they simply replicate the end result. So in order to compare a deli to someone pirating digital media, people who pirate digital media would have to steal the humans who created the works, along with every single piece of equipment necessary for recording and editing and finalizing the end result. This is not the case, so your analogy is invalid.

    The problem I have with companies going after "pirates" is that they don’t realize that when people purchase goods, that the good no longer belongs to the company that produced it. When a person buys a car, lets say a Honda Civic for example, the car now belongs to them. You can replace every single part of the car, better performance engine parts, wheels, tires, breaks, transmissions, seats, electrical components, body parts, stereo equipment, etc. You could even go so far to build a new chassis for everything to go in and manufacture a completely new product, but at no point during any of these procedures can Honda tell you what you can and cannot do to the good they produced. Even after all your tweaks and mods have been done, you can go right ahead and sell the good off, even for a profit.

    Now consider that an incredibly gifted individual unlocks the secrets of physics and alchemy and is now able to create an elaborate setup where popping out duplicates of Civics became just as easy as the copy & paste commands of digital goods. Could this person now go around and start selling off these copies? NO. The same goes for digital goods, you cannot create a duplicate and sell it, but you can create a duplicate for personal use. Essentially the same is true for all other types of goods, but the process of replicating these goods isn’t as simple as digital media.

    Now lets go ahead and assume that this individual had a stockpile of 1,000 Civics. Our gifted individual happens to be extremely paranoid and wants to make sure in the event that his original car were to be lost, stolen, blown-up, or by some other means rendered inoperable, he would then have a backup on hand. And if the same were to happen to that backup, he'd have another, and so on and so forth.

    So now we have an individual who purchased a good from a company. The company got their profit from the sale, and all is well. The individual legally duplicates and disperses his good for personal use so that at any point in time he can freely access and benefit from the use of his legally obtained good at 1,000 different locations. If he were able to create a mobile replicating device that accessed the original blueprint remotely, he would have a much more efficient process. Now our paranoid Civic enthusiast has his 1,000 Civics spread out all across the country where he lives, so in the event he gets a flat tire, he can just hop into another one. The need to go through the hassle of taking a bunch of security measures to ensure that all his copies are in a safe and secure location does not exist; after all, in the event one should get damaged, or stolen, he can just as easily create another copy. However, it just so happens that someone catches wind of this and steals all 1,000 Civics in one day. Honda cannot now sue him for the “loss” of 1,000 Civics. They can’t even seek legal repercussions, nor would they even want to against the criminals who stole the goods, which has certainly never been the case during any other instance of grand theft auto.

    The issue at hand is not about the duplication of the products, it’s about whether or not the duplicates will effect the amount of revenue that would normally be garnered from the sale of the good if it could only be obtained directly from the source, and that is the where the topic of discussion should be focused. More and more studies are showing that pirated music actually helps promote the music, generating popularity for the artists. The greater the chance for someone to hear a song, the greater the chance they’ll like the artist. There’s plenty of ways to create profit off this boost in content dissemination, and some cases have even been shown to make higher profits versus traditional methods. Plenty of artists are catching on and finding ways to make it profitable, it’s a goddamned tragedy Congress is protecting Big Business because they can’t.

     

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  16.  
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    Anonymous Coward, May 24th, 2008 @ 12:58am

    Re:

    "Then why isn't it illegal for fast-food chains to sell "breakfast sandwiches" that are virtually identical to a McDonald's Egg McMuffin? Why can I go to any supermarket and buy frozen breakfast sandwiches that contain all the same ingredients as an Egg McMuffin? Granted, they're not called "Egg McMuffins", but they're the exact same sandwich."

    Because they're not stealing, they're producing the Egg McMuffins themselves. The real question is why whats true for Egg McMuffins isnt true for Software...

     

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  17.  
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    Reason, May 24th, 2008 @ 1:26am

    Re: The Pirate Bay Mentality

    Isn't greed morally reprehensible? Not that I am a Christian, but isn't greed considered to be one of the 7 capital sins?

     

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  18.  
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    BOM, May 24th, 2008 @ 1:30am

    Re: Re: Re: The Pirate Bay Mentality

    Ah, the fallacious and short-sighted mentality that legality=morality... Would it be morally right to kill someone just if some fucked up law allowed it?

     

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  19.  
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    LHC, May 24th, 2008 @ 3:39am

    Re: Re: The Pirate Bay Mentality

    Whose greed are you commenting on? The record companies? Sure they are greedy, but at this point in time they are within their legal rights to try and stop TPB. Doesn't mean they should be trying underhanded things like sneaking stuff into treaties, but even if you consider it immoral, they are legally in the right. It seems like the way to fix this is to change the law rather than try to change Hollywood, as the past decades have shown them to be very resistant to change.

    Sadly, I don't see the EFF and similar organizations possessing the same political power as Hollywood, and I don't know how the pro-TPB lobby could possibly gain enough power to make a difference.

     

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  20.  
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    Bob, May 24th, 2008 @ 5:39am

    Re: Re: Re: Re: The Pirate Bay Mentality

    You mean, like the death penality? Why yes! I Love that that fucked up law!!

     

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  21.  
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    DEP, May 24th, 2008 @ 5:43am

    Do U Believe?

     

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  22.  
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    DEP, May 24th, 2008 @ 5:51am

    Do U Believe?

    In response to (1) pizza, Mike does not believe in the law of property. The real analogy is that you are not going to a deli, but another pizza shop and taking with you MY pizza! And with art unlike pizza, every slice of art is unique. So when you go to another pizza shop, you do not get my pizza unless you take it from my pizza shop. But on the internet you do take it. Don't eat my pizza without paying me, please. Capish?

     

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  23.  
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    Iron Chef, May 24th, 2008 @ 6:26am

    Re: Do U Believe?

    Hi DEP,

    Welcome to TechDirt! You must be new here! To answer your first question, the conversations over the past few years have absolutely respected one's property ownership rights. May I suggest you lurk around a little more, but that's okay! I'm in a great mood and am just here to help.

    Secondly, many conversations have circled around how to potentially monetize some of the Web 2.0 technologies that have come around over the past few years.

    To elaborate on your post, I'm NEVER going to steal your pizza, but if you have a whole pizza, are you going to eat it all by yourself in one sitting? If not, why aren't you finding ways to sell me your extra slices?

    With content being a consumable, and also existing in a digital world, this is possible, but many people have difficulty with this concept because like the very nature of a digital world, it's quite intangible. What a wonderful problem!

    Many things are to be done.

    Welcome aboard!

     

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  24.  
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    MLS, May 24th, 2008 @ 7:23am

    Re: Re: The Pirate Bay Mentality

    This is a strawman response that does not address the issue at hand.

     

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  25.  
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    MLS, May 24th, 2008 @ 7:33am

    Re: Re: Re: Re: The Pirate Bay Mentality

    If memory serves me TPB has moved to another country in order to avoid being held accountable in its home country for its actions.

    Grokster tried the same approach in the US and lost. No doubt TPB would have suffered the same fate had it not scoured the world for a "friendly" country. Despite its relocation I believe it is fair to say that TPB's days are numbered and its cocky attitude will come back to haunt it. TPB had better hope it has relocated to a country that does not have an extradition treaty because otherwise its principals will find themselves on a plane taking them back home to face the "music". Even without an extradition treaty it is likely that political muscle will be applied to achieve the same end.

     

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  26.  
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    Anonymous Coward, May 24th, 2008 @ 8:42am

    MLS,
    Please remind me ........
    What does TPB supply on their website ?

    From the sounds of it, you are accusing them of providing a download of some sort from their servers. Is this correct ?

     

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  27.  
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    PaulT (profile), May 24th, 2008 @ 8:58am

    Re: Re: Re: Re: Re: The Pirate Bay Mentality

    "If memory serves me TPB has moved to another country in order to avoid being held accountable in its home country for its actions."

    Half right. The Pirate Bay's hosts were raided and servers confiscated by Swedish authorities in 2006, and new servers set up in the Netherlands. However, it was subsequently found that they were, in fact, not violating any laws in its home country. US-based prosecutors (who have no local jurisdiction) and their sympathisers regularly attempt to attack them but have not been successful. If they do succeed, it will probably only be via a change in local laws (as with the allofmp3.com case).

    It's also worth noting that while attempts to prosecute them have failed thus far, these attempts have helped increase their traffic many times over. They were a relatively obscure tracker site when the attacks started, now they're one of the top 100 sites, of any type, in the world.

    Face it, by the time The Pirate Bay is actually made to face any charges for its "actions" (note: they still do not infringe any copyrights themselves), a different service will have appeared. Just as the "victories" agains Napster, Grokster, Supanova, etc. have not made a blind bit of difference, nor will shutting down The Pirate Bay.

    I've said it many times - the way to stop piracy and IP infringement is to give people what they want. Overpriced, DRMed, regionally restricted, inflexible products in inconvenient formats have damaged the entertainment industry far more than any of the pirates. Get rid of the demand, and these services will cease to be relevant.

     

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  28.  
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    MLS, May 24th, 2008 @ 9:09am

    Re:

    Pirate Bay is doing precisely what was done by Grokster, and the US Supreme Court dealt Grokster a fatal blow with its 9-0 decision. Even the members of the court who have in the past raised considerable concerns about intellectual property in general had no problem determining that Grokster was liable for facilitating copyright infringement. One of these members of the court is Justice David Souter...and it was Justice Souter who wrote the opinion for a unanimous court.

    If you are so inclined, you can read the opinion at:

    http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf

    Now fans of TPB will of course retort that it is not located in the US and subject to US law. This is interesting, but will untimately prove to be of no avail. US law does have extraterritorial reach, and I expect that TPB principals will learn this lesson the hard way.

     

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  29.  
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    Anonymous Coward, May 24th, 2008 @ 9:16am

    So, to rehash old ground and make a bad analogy -

    if I point out someone across the street who is selling counterfeit goods, then I am in violation of what ?

     

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  30.  
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    John Wilson, May 24th, 2008 @ 9:36am

    Re: The Pirate Bay Mentality & Unintended Consequences

    Morality is a pretty weak peg to hang your argument on when you, and others, look into it and discover that one of the things that the entertainment industry has been found guilty of over the last century is indulging in some highly creative "accounting" which overstates expenses and understates income on a good (movie or recording) which leads to artists who rely on residuals to not get paid what they're contracted to be paid.

    Moral obligations cut many ways, remember, and the entertainment industry doesn't have a reputation of being the most moral of industries.

    All that said I'm going to make a counter argument around the ever growing arguments from that industry regarding copyright.

    Have you noticed that from DCMA in the United States till today that "piracy" has not gone away? One can argue, in fact, that it's more widespread than ever in spite of DRM technologies designed, however poorly, to prevent it.

    This is broadly known as the law of unintended consequences. By attempting to prevent legal copying DRM, take down notices and do on have simply annoyed the consumer of entertainment products and increased their search for ways around it.

    Further, it has led to an increase of contempt of an otherwise very necessary legal instrument known as copyright in the larger consumer world and a subsequent increase in searches for a way around it.

    That does oversimplify the issue a bit. Not by much, though.

    No matter how successful the entertainment industry may be in expanding copyright beyond it's original intent using compliant legislators the simple fact remains that once a law or concept is held in high enough contempt by the public at large it becomes, quite simply, unenforceable.

    Like it or not I suggest to you that this is what is happening right now around copyright and, to a lesser extent, patents.

    ttfn

    John

     

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  31.  
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    PaulT (profile), May 24th, 2008 @ 9:42am

    Re: Re:

    ...and yet the Grokster case is still under discussion and the effect of precedents in the case still discussed. The ruling happened 5 years ago, your link 4 years ago, and many aspects are quite irrelevant to the current online climate.

    "Now fans of TPB will of course retort that it is not located in the US and subject to US law. This is interesting, but will ultimately prove to be of no avail. US law does have extraterritorial reach, and I expect that TPB principals will learn this lesson the hard way."

    Spoken like a true arrogant American. US law will only reach where the host nation's lawmakers allow it to. The Pirate Bay is still not guilty of breaking Swedish law, so lawmakers have to be convinced to change local laws. Yes, the US does have significant influence, but it can't control without a fight. If this does happen, there's so many sympathisers in so many countries that remote mirrors will probably live on long after TPB have gone.

    Meanwhile, new sites will be set up that TPB's prosecution (if it happens) will be equally irrelevant to. The Grokster decision has not helped to kill TPB. Napster's death didn't stop Limewire or Kazaa or eDonkey. Supanova's death has not killed Mininova. Why would TPB's death stop piracy in any way? TPB is the current head of this particular hydra, nothing more.

    Once again, I'm not arguing pro-piracy, I'm simply saying that these tactics are not working, and will never work.

     

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  32.  
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    Anonymous Coward, May 24th, 2008 @ 9:43am

    Re:

    Perhaps you should add Litecubes v. Norther Lights Products to your reading list. It can be found at:

    http://www.cafc.uscourts.gov/opinions/06-1646.pdf

     

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  33.  
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    PaulT (profile), May 24th, 2008 @ 9:52am

    Re: Re:

    Maybe I'm not reading that right, but that seems to be a court case about a company who were shipping an infringing product, but believed they weren't liable because they shipped to the US but the sales took place in Canada.

    If so, that doesn't answer the original question at all. In your case, the company was shipping an infringing product. In the question originally asked, the company (e.g. The Pirate Bay) would not be committing any infringement themselves, but rather point out where infringing products can be found.

     

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  34.  
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    MLS, May 24th, 2008 @ 10:00am

    Re: Re: Re:

    The Grokster decision was rendered in June 2005. This is just a point of clarification.

    The reach of US law is whatever the US Congress decides, just like the reach of another nation's law is whatever its lawmakers decide. What this means under US law is that while a defendant may be located in another country, it is entirely proper for a US Court to try the case in the US. Whether or not a judgement against a defendant can actually be enforced against a defendant situated in a foreign country is, of course, a different issue...but one in which international politics play an important role.

    Yes, many times laws are not particularly effective in stopping wrongful conduct. Even so they exist if for no other reason to declare as a matter of public policy that such conduct is not to be tolerated.

     

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  35.  
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    DSJ, May 24th, 2008 @ 10:01am

    Re: Re: US Extraterritorial Law

    US Law has jurisdiction in the US, and I believe that the Netherlands, Sweden, and any number of right-minded countries like it that way and will not allow the US to come in and strong-arm them into giving up their citizens to the US for actions which are not a crime in their own country. I'm a US citizen, and I'm not proud of my country's laws as they apply to IP. I hope like hell the RIAA, the MPAA, and the rest of their ilk fail miserably as the rest of us embrace new technology. I would love for the RIAA's chief's to have to learn their new work phrase: "Welcome to Wal-Mart."

     

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  36.  
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    MLS, May 24th, 2008 @ 10:07am

    Re: Re: Re:

    What you say is true, but the case involved both patent and copyright claims, and the question before the court was whether or not a US Court holds what is known as "subject matter jurisdiction" to even hear the case in the first place. The court answered the question in the affirmative with respect to both patent and copyright law. This basically means that a trial can proceed in US Courts, but as in all cases a defendant is able to raise any and all legal defenses that may be available to it. In all likelihood TPB would not dare to show its face in a US Court, in which case the likely result would be a default judgement in favor of the plaintiff. With such a judgement in hand I have no doubt politics would come into play to try and enforce that judgement in a foreign jurisdiction.

     

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  37.  
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    MLS, May 24th, 2008 @ 11:03am

    How nice...

    While posts here may widely vary in viewpoint, how nice it is for once to see a series of thoughtful posts and the absence of personal invective.

    If only more threads followed the trend set here.

     

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  38.  
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    PaulT (profile), May 24th, 2008 @ 11:17am

    Re: Re: Re: Re:

    Possibly, but you've still got several major hurdles as I see it. The first is that the case you liked doesn't really set a precedent in that TPB are not supplying the infringing product itself. Then, you have the issue of their service being completely online - shipping a physical product can be viewed differently to transferring data. Then, you have the question of convincing Sweden to allow indictment of its citizens of "crimes" committed on its soil that are not illegal in Sweden.

    Politics will come into play (as we saw with the policeman at the head of the Swedish investigation who "coincidentally" gained employment with the IFPI shortly after), but there's a lot more to that. Before TPB see the inside of a courtroom, the next guys will be ready to take their place.

     

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  39.  
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    Anonymous Coward, May 24th, 2008 @ 11:29am

    I suppose that the us will have to invade because of these (WMD) webs of media distibution.

     

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  40.  
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    Anonymous Coward, May 24th, 2008 @ 11:33am

    Re: Re: The Pirate Bay Mentality & Unintended Consequences

    JW,

    Very well put.

     

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  41.  
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    Mike (profile), May 24th, 2008 @ 11:45am

    Re: The Pirate Bay Mentality

    Say what you will about media companies, but in no reasonable way can their actions to try and secure legal protection for their products be deemed morally reprehensible. The same cannot be said of Pirate Bay and others of similar ilk.

    I'm not sure you can really make that argument. The media conglomerates are sneaking in questionable laws, sending out letters that border on extortion and generally lying and paying off politicians to get their way.

    The Pirate Bay? They've built a search engine to make content easier to find.

    Yes, that's exaggerated, but it's exaggerated in the same way your explanation was exaggerated. Again, you keep wanting to get into a the moral argument when it really isn't that important here.

     

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  42.  
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    Mike (profile), May 24th, 2008 @ 11:50am

    Re: Do U Believe?

    In response to (1) pizza, Mike does not believe in the law of property.

    Absolutely untrue. I am a *staunch* believer in the importance of property rights. But only if it's really property (i.e., a scarce good). I do not believe there is any reasonable argument for property rights with goods that have no limit.

    The real analogy is that you are not going to a deli, but another pizza shop and taking with you MY pizza!

    No, in that case you are without your pizza. In the case we are discussing above, you still have your pizza.

    But on the internet you do take it.

    No. You don't. You may get a copy of the end result, but you, as the original producer hasn't lost anything.

     

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  43.  
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    MLS, May 24th, 2008 @ 12:55pm

    Re: Re: The Pirate Bay Mentality

    "I'm not sure you can really make that argument. The media conglomerates are sneaking in questionable laws, sending out letters that border on extortion and generally lying and paying off politicians to get their way."

    We both know this is exaggerated for effect, but it would help make your argument if you provided specific examples where what they are doing contravenes our system of law and where they do so with impunity. Successful lobbying, hard nosed business positions, etc. we both know are not illegal.

    "The Pirate Bay? They've built a search engine to make content easier to find."

    As did Grokster if I recall the facts in that case correctly. I understand (correct me if I am wrong) that the difference between what Grokster did and what TPB is doing is that the latter is "doing their thing" outside the US.

     

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  44.  
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    MLS, May 24th, 2008 @ 1:03pm

    Re: Re: Do U Believe?

    "I do not believe there is any reasonable argument for property rights with goods that have no limit."

    You are certainly entitled to hold such a view. From my perspective I believe it is a good thing it is a minority view.

    "No. You don't. You may get a copy of the end result, but you, as the original producer hasn't lost anything."

    What about the "opportunity" to have made a sale in the first place?

     

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  45.  
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    Mike (profile), May 24th, 2008 @ 1:08pm

    Re: Re: Re: The Pirate Bay Mentality

    We both know this is exaggerated for effect, but it would help make your argument if you provided specific examples where what they are doing contravenes our system of law and where they do so with impunity. Successful lobbying, hard nosed business positions, etc. we both know are not illegal.

    Er... we point to such examples just about every day.

    As did Grokster if I recall the facts in that case correctly. I understand (correct me if I am wrong) that the difference between what Grokster did and what TPB is doing is that the latter is "doing their thing" outside the US.

    No. Grokster set up a network where people could share works. TPB does not do that. It merely allows one to search for torrented files that are available on the wider internet.

     

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  46.  
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    Mike (profile), May 24th, 2008 @ 1:12pm

    Re: Re: Re: Do U Believe?

    You are certainly entitled to hold such a view. From my perspective I believe it is a good thing it is a minority view.

    Can you give a decent reason why?

    I note that you did not respond to any of the points I raised about why morality doesn't come into play when everyone is better off...

    What about the "opportunity" to have made a sale in the first place?

    Can you point me to the law that says removing the opportunity is illegal? If such a law existed it would open up a world of problems.

    Opportunity is a marketing issue. When some other lawyer gets a client away from you, he has taken away your opportunity to profit from that client. Yet you don't sue him for "stealing" your client.

    Opportunity to make a sale is a marketing issue, not a legal one.

     

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  47.  
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    MLS, May 24th, 2008 @ 1:48pm

    Re: Re: Re: Re: Do U Believe?

    "Can you give a decent reason why?"

    Yes.

    "I note that you did not respond to any of the points I raised about why morality doesn't come into play when everyone is better off..."

    It is difficult to respond to all points raised in a long post.

    "Can you point me to the law that says removing the opportunity is illegal? If such a law existed it would open up a world of problems."

    Yes. Among others, federal law pertaining to patent, copyright, trademark infringement and trade secret "theft" (not my term, but that used by the DOJ and Congress). State law pertaining to trademark and some copyright infringement, trade secret "theft" (again, a term used by others at the state level), and unfair competition.

    Let me be so bold as to suggest that if one of your colleagues at techdirt set off on his/her own, took a copy of your client list and other important, non-public business information, and then used that list and business information to take away all of your current and prospective clients, I rather doubt your response would be "Que sera sera". If you came into my office asking for help, I do not believe you would be very happy if I responded by saying "Hey, all they have done is light a candle from your candle. You still have your list of clients and business information."

     

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  48.  
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    Anonymous Coward, May 24th, 2008 @ 2:32pm

    Again, how is the Grokster ruling relevant here ?

     

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  49.  
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    What were they thinking, May 24th, 2008 @ 5:07pm

    Holy Crap

    Wow, this is really messed up. Copyright infringement is a criminal offense.
    The NET act, a federal law passed in 1997 provides for criminal prosecution of individuals who engage in copyright infringement, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%.
    http://en.wikipedia.org/w/index.php?title=NET_Act&oldid=211780721

    Just because the law is "on your side" does not make it right. For example - off topic but relevant case:
    http://www.rockymountainnews.com/news/2008/Jan/11/boulder-couple-appeals-taking-property-neig hbors/

    You can ramble on all you want about what the law states, but in the end you have to ask yourself is it right ?

    Prison term for copyright infringement, what used to be a civil matter ??????
    You've got to be joking - but no - there it is.

     

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  50.  
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    Mike (profile), May 24th, 2008 @ 5:42pm

    Re: Re: Re: Re: Re: Do U Believe?

    "Can you give a decent reason why?"

    Yes.


    Tragic that you choose not to. And yet you're the one complaining of the level of discourse around here. Funny, that.

    Yes. Among others, federal law pertaining to patent, copyright, trademark infringement and trade secret "theft" (not my term, but that used by the DOJ and Congress). State law pertaining to trademark and some copyright infringement, trade secret "theft" (again, a term used by others at the state level), and unfair competition.

    Outside of IP law was what I meant. And, no, it is not theft. As has been pointed out repeatedly. Even if some ignorant folks call it theft, it does not make it so. The vast differences between infringement and theft have been laid out before. Why you continue to use the false phrase is beyond me. I'm guessing it's due to the lack of any real argument. Too bad. I had thought you were above that.

    At the same time, you still have failed to point out the law that says taking away someone's opportunity for a sale is somehow theft. But, alas...

    Let me be so bold as to suggest that if one of your colleagues at techdirt set off on his/her own, took a copy of your client list and other important, non-public business information, and then used that list and business information to take away all of your current and prospective clients, I rather doubt your response would be "Que sera sera". If you came into my office asking for help, I do not believe you would be very happy if I responded by saying "Hey, all they have done is light a candle from your candle. You still have your list of clients and business information."

    If someone made off with our client list, they would still need to convince my clients to move to them. If we serve them better, why would they move? In what world would it be right for me to try to prevent my clients from going to those who would better serve them?

    So, no, my answer would not be "que sera sera." My answer would be to make sure I serve my clients so well that they know better than to go to a competitor.

    I had no idea you were so against competition, MLS.

     

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  51.  
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    Anonymous Coward, May 24th, 2008 @ 7:47pm

    copyright enforcement is for your benefit

    And of course nothing could ever go wrong with enforcement of copyright - right ?

    http://hownow.brownpau.com/archives/2008/05/owning_the_clouds/

    I can see this leading to the suppression of free speech

     

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  52.  
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    MLS, May 24th, 2008 @ 7:58pm

    Re: Re: Re: Re: Re: Re: Do U Believe?

    "Outside of IP law was what I meant..."

    Unfair competition law at both the federal and state levels is "outside of IP law". For the most part it is not founded upon property law. And, as strange as it may seem, unfair competition law is grounded in basic moral principles.

    I am intrigued by your answer concerning your client list (note: I also included "other important, non-public business information"...little things like client files, work done on behalf of clients, copies of the business plans crafted for specific clients, etc., etc.) It does sound a bit utopian, especially if one of your clients calls and asks "What the heck is a copy of my business plan that I paid you to prepare doing on the internet?"

     

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  53.  
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    Anonymous Coward, May 24th, 2008 @ 8:36pm

    Re: Re: Re: Re: Re: Re: Re: Do U Believe?

    He wants to discuss "moral principles" ?

    This from someone who supports what the RIAA & MPAA are doing.

     

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  54.  
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    somebody, May 24th, 2008 @ 9:58pm

    Re:

    It would be if the other fast food chain stole the meats for their sandwiche from the other. The point is the stealing part, not the "exact replica" part.

     

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  55.  
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    PaulT (profile), May 25th, 2008 @ 12:52am

    Re: Re: Re: Do U Believe?

    ""No. You don't. You may get a copy of the end result, but you, as the original producer hasn't lost anything."

    What about the "opportunity" to have made a sale in the first place?"

    Aha. Here's the problem, MLS. You have fallen into the same trap as the industry on this one - the assumptions that every download = a lost sale and that there's no way of either regaining the "lost" sale nor leveraging additional sales via the downloads.

    Let me explain with a couple of anecdotes from my own experience. Let me preface this by saying that I no longer engage in the described activity, and I'll explain why afterwards.

    First, Napster. When that service appeared, I admit that I did download a lot of songs that I "could" have bought - e.g. they were available on CD. However, I was going through a lot of financial issues at the time so couldn't justify buying CDs (my internet was also used for work purposes so I didn't pay for it). So, straight away there's no "marketing opportunity" lost - I couldn't pay for the music either way. If Napster wasn't available, I wouldn't have bought any extra CDs. However, I also used Napster for 2 other purposes - finding songs that I had been searching for most of the previous decade, and unreleased songs and remixes. These often led me to new music and artists I may never have heard through "legitimate" means.

    Guess what happened when I got some money? That's right, I started buying CDs again, many of them from artists I found through Napster. After buying the CDs, I have also bought DVDs, T-shirts and concert tickets from the same artists. When Napster failed, I moved on to other services - Limewire, torrent sites. I bought a lot of stuff because of this, too. I bought a 10 CD Doors boxset because a friend copied a few albums for me that he'd torrented and I found that I liked them. I bought the Requiem For A Dream soundtrack CD, remix CD and movie DVD after watching a pirated copy of the movie, as well as several other albums by Kronos Quartet and Clint Mansell... and so on...

    But, now I don't download music illegally. I also don't buy CDs yet I listen to a lot of music. I spend at least €30/month on music, yet the RIAA never sees a penny. How is that? Easy - I have an eMusic subscription. That particular site gives me everything I want (non-DRMed, reasonably priced music). But that site's not for everybody because it's purely independent music, so the same opportunities need to be given to the mainstream as well.

    ""I do not believe there is any reasonable argument for property rights with goods that have no limit."

    You are certainly entitled to hold such a view. From my perspective I believe it is a good thing it is a minority view."

    Maybe that's the reason the music industry's going down the tubes while Techdirt is a going concern, along with many others who understand the new business models required?

    The problem with the actions of the RIAA et al. is that while they're suing "pirates", they're also suing their own customers - pushing people to boycott them (as I have) or lose interest in music altogether. They're also suing the websites that give people what they want without giving them any alternative. I'd love to buy MP3s from Play and Amazon, but I'm not allowed to because I don't live in the "right" country. TPB has no such issues.

    The lessons are these: a download is not always a lost opportunity, and you have to give customers a *reason* to buy the legitimate copy. Don't restrict the music either geographically or technically, make the price reasonable and offer something the pirates aren't/can't (e.g. discounted merchandise, decent artwork), then you can make the sale. Charging 99c/track for DRMed, regionally restricted, low quality rips puts off as many people as the convenience attracts.

     

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  56.  
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    Bert, May 25th, 2008 @ 2:12am

    Re: Re:

    US law does have extraterritorial reach

    US law can lick my arse!

     

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  57.  
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    foobar, May 25th, 2008 @ 4:45am

    Re: The Pirate Bay Mentality

    Please explain to me how any of including self-installing rootkits on audio cd's, threatening people with lawsuits carpet-bomb-style without proof or lying about the effects of piracy are morally acceptable? And that's just to answer the direct point of the immoral and reprehensible actions they take to secure legal protections.
    Just as immoral and reprehensible are their actions in just about every other facet of their business, such as colluding/price-fixing, very questionable contracting practices that include screwing artists in any and every way possible and everyone's favorite: payola.
    To use "moral" and recording companies in the same sentence requires you to use the negative - as in "immoral".

     

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  58.  
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    Paul Morris, May 25th, 2008 @ 7:13am

    What drivel

    what moron wrote this drivel.
    stealing someone's IP (a hollywood movie) and offering the SAME FUCKING MOVIE for free, is in NO WAY like depriving pizza hut of income by going to a deli, and only an intellectually vapid cretin would imagine this to be the case.
    Still, any old bullshit if ti justifies theft by geeks right?

     

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  59.  
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    jake M, May 25th, 2008 @ 7:14am

    Re: Re:

    yes I'm sure everyone who runs multi billion pound businesses are thick as shit and only a little kiddie yourself who steals movie is intellectually capable of working it all out.
    get a job you dork.

     

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  60.  
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    Jake M, May 25th, 2008 @ 7:15am

    Re: Re: Re: Re: The Pirate Bay Mentality

    yes because preventing someone stealing a movie you spent 3 years making is exactly the same as homicide isn't it,.
    retard.

     

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  61.  
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    trudy M, May 25th, 2008 @ 7:16am

    how pathetic

    That you try and equate people who make movie music and games and don't want them taken for free, with slavery.

    You need to grow up and read some fucking history kiddo.

     

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  62.  
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    jane M, May 25th, 2008 @ 7:18am

    Re: Re: Do U Believe?

    so you think everyone who makes anything whatsoever that can ever be reproduced at little cost should just fuck off and become a plumber?

    because that's the end result of your fucked up logic kiddo.

     

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  63.  
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    jane M, May 25th, 2008 @ 7:19am

    Re: Re: Re: Re: Do U Believe?

    pirates aren't customers. they are thieves. trying to pretend you are a 'customer' while you walk out the door with the products up your shirt is frankly just pathetic.

     

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  64.  
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    jane M, May 25th, 2008 @ 7:20am

    Re: Re: Re:

    keep cheering on those arrogant swedish criminals kid. it just shows how fucked up your sense of morality is.

     

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  65.  
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    jane M, May 25th, 2008 @ 7:20am

    Re: Re: Re:

    fine.
    just stick to Swedish movies then, hypocrite.

     

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  66.  
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    Anonymous Coward, May 25th, 2008 @ 7:49am

    jane M,

    It appears that you are talking to yourself here.

     

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  67.  
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    Anonymous Coward, May 25th, 2008 @ 8:18am

    Anyone know where I can get a cracked copy of World of Warcraft?

     

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  68.  
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    PaulT (profile), May 25th, 2008 @ 8:22am

    Re: Re: Re: Re: Re: Do U Believe?

    ...and that's the mentality that's killing the industry.
    (hint: stealing something from a store != downloading it.)

    I also watch TV at a friend's house and listen to the stereo at work, so I get entertainment. Am I not still a customer when I buy the same shows and albums later? If the RIAA tries suing me for doing so, won't I just decide not to remain their customer?

    Respond with coherent sentences and actual rebuttals (preferably citing evidence) if you disagree.

     

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  69.  
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    PaulT (profile), May 25th, 2008 @ 8:24am

    Re: Re: Re: Re: Re: Re: Do U Believe?

    that should have read "... so I get entertainment without paying for it"

     

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  70.  
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    PaulT (profile), May 25th, 2008 @ 8:30am

    Re: Re: Re: Re:

    Real mature, aren't you? Morality? My stated sense of morality is that I buy music through eMusic (depriving the RIAA of money via legal independent downloads) - money goes to the artists but I boycott these cartels because of their tactics.

    Try reading the posts again, this time taking note of the following sentences:

    "The Pirate Bay is still not guilty of breaking Swedish law"

    "Once again, I'm not arguing pro-piracy, I'm simply saying that these tactics are not working, and will never work."

    They're not criminals in their home country, and the RIAA will never win with these tactics. Should the industry wish to introduce new business models that actually attract customers then I'll support that and cheer them on. For now, all i can do is point out how their tactics are alienating and driving away their own customers.

     

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  71.  
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    MLS, May 25th, 2008 @ 9:10am

    TPB

    To those who believe TPB and other sites like it do not improve the lot of society are simply myopic.

    You see, if a movie is released in digital form and is able to be freely copied with the assistance of sites like TPB, such copying (and the more the better) incentivizes the movie producer to create even more movies.

    Now, one of the reasons for myopia is the failure to realize that copyright laws are an anachronism whose time has long since passed. They do not provide incentive for economic growth because once a movie is produced they encourage the producer to rest on his/her laurels and eschew further productions.

    Hopefully my comments will help clear things up for those who cling to the outdated notion that paying for "digital" goods is a good thing for society. Nothing could be further from the truth.

     

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  72.  
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    PaulT (profile), May 25th, 2008 @ 9:12am

    Re:

    Nice try, but since Blizzard are already using a model that doesn't depend on selling the software itself, your example is irrelevant.

    (i.e. You pay for a monthly sub to WoW, not simply the software itself. You can't properly pirate a copy of WoW since you need paid-for authorisation to use it on their servers.)

     

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  73.  
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    MLS, May 25th, 2008 @ 10:01am

    Re: Re:

    I see. Protecting "digital" copies of software distributed to the public is wrong, but protecting such software by only allowing server access is not. That helps clear things up significantly.

     

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  74.  
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    PaulT (profile), May 25th, 2008 @ 10:04am

    Re: Re: Re:

    No.

    When you buy WoW, you are not buying the game. You are buying 1 month of server access + the game. If you wish to play the game for more than 1 month, you pay for another month.

    Blizzard's business model here is built around the monthly subscription, not on the code. They are selling the access, not the CD. Hence, their business is working since all they need to do is continue investing enough for people to wish to continue playing, rather than working out how to sell new shiny discs every month.

     

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  75.  
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    MLS, May 25th, 2008 @ 10:25am

    Re: Re: Re: Re:

    Without the code there is no business model.

    One has a choice. Access code via a server connection, or access code via stand-alone code resident on the hard drive of a PC. In the former instance unlawful copies of the code cannot be made because copies are never placed in the hands of the user. However, in the latter copy protection is plainly wrong because that limits the user's experience.

     

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  76.  
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    PaulT (profile), May 25th, 2008 @ 11:25am

    Re: Re: Re: Re: Re:

    Again, you're missing the point.

    "One has a choice. Access code via a server connection, or access code via stand-alone code resident on the hard drive of a PC."

    No, again the business model is not the code! It's based around the experience. In the case of WoW, the experience of playing against/with thousands of other people. In order to get this experience, there needs to be a centralised server. Blizzard are selling access to this server, NOT the code.

    Therefore, the game is successful. It would be quite feasible for somebody to come up with a pirate copy of the server code (either stolen from Blizzard or self-programmed) and for people to use that instead. But this doesn't happen because even with that code, the experience (helped by, among other things, the gamesmasters, community, patches and additional content constantly being produced) would be inferior on the pirate server.

    Therefore, it doesn't matter a bit if the game is pirated. A valid, paid-for account is needed to experience the multiplayer content. Again, Blizzard are succeeding where much of the PC gaming industry is stalling at present, largely because they don't depend on sales of their software. They depend on keeping their 8 million existing users happy so they continue paying for the experience.

     

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  77.  
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    RudeDogs, May 25th, 2008 @ 12:17pm

    TPB and the Web

    From what i understand of torrent file, TPB is not sharing the files, there only sharing a NOT copyrighted hash file, Yet the companies or trying to shut them down for helping spread piracy. Does not the internet help spread piracy? Will they start AGAIN to shut down the WWW and sue ISP's for help spreading piracy? Since if we turn of the www we in fact stop 99% of the pirate movies/music/software.

    Its all US laws they or trying to force on the world. But US law says you can not be held accountable for the post of users on your website. You can be told about any post that is illegal and be told to remove it. But sinc HASH files or not a crime they will not be able to even ask for there remove by US Law.

    I Know i will flamed for my grammar, I am a LONG time lurker. and i never post because my grammar and spelling is so bad, but I think this has gone on too far. everyone saying TPB is breaking laws and spreading files is a flat out lie. they just host user posted hash files. User who post hash files leading to copyrighted files or breaking the law, and users who download known hash files leading to copyrighted material or breaking the law. not TPB. I download 3 to 5 ISO Linux distro's a month all in torrent files, some even from TPB. And guess what ITS NO A CRIME.

     

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  78.  
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    Anonymous Coward, May 25th, 2008 @ 8:38pm

    Re: disagree

    you're incorrect in your example, instead of stealing the meat from the deli it would be more like buying the meat from the grocery store rather than the deli and making the exact same sandwich. the only difference is we don't buy bits from the store we write them.

    the fun part is, if copying bits is illegal, then you will not be allowed to use a computer because all computers do is cache and translate data. in which case you plagiarize every piece of data you view.

    the question is, being that "intellectual property" materials are insubstanial and only exist in non literary form so that you can only read it if its translated, is it truly plagiarism?

    second is, 99% of the time the people who use the pirated software or copied music, the would not purchase the software if that was the only choice given. so did the company really lose profits?

     

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  79.  
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    still using torrent though lol, May 25th, 2008 @ 10:48pm

    Re: Re: disagree

    many of the pirated software users' reason for not buying the legal copy is simple. they want it, but they don't want to pay for it, even if they can afford it, because the illegal copy is readily available, and they probably never get caught and penalized for that. (including myself)

    now, i think there is a great deal of positive marketing effect by illegal copy for being able to capture huge market share, potentially...like how MS didn't do anything to stop piracy in 90s, which gave them basically the entire OS market. But this is just a "fact after the fact". many people tend to see that just because the similiar scenario of MS success "could potentially work", therefore piracy shouldn't be the problem.

    But if the users "chose" not to buy the software because the illegal copy was available, then we can deduce that the software company did lose some profit it should've received. However, it is also important to note that....If a user was "just curious" to have the software, then whether the profit was lost of not becomes extremely difficult to reason since the user probably wouldn't have gotten the software if it wasn't for free. the "lost profit" theory most likely applies to only the users who benefit from the pirated prog more than just a "personal curiosity to see what it is".

    But at the same time, we can think in this way....let's say....in Paris you need a ticket to ride a train. Although you must purchase and put it through the machine before entering a platform, the machine doesn't have any block and you can simply go through it without actually having a ticket. Now, if you get caught riding a train without a ticket, is this a crime? Of course. The system does have a weakness in exploitation, but that doesn't legalize the exploitation. This means that using copies of one ticket is also illegal (of course).

    While it is probably impossible to irradicate piracy, the subject in scrutiny is the few bunch of people who "just don't want to pay" for anything. And these people, it seems to be, are the loudest and most active in trying to protect piracy. Unfortunately, their argument is not the strongest because they often base their argument in wrong premise. for example, "If companies are having trouble convincing people to pay them for their products, that's their business model problem". If this is so, stealing a key in an unlocked car at the dealership, could potentially be just "company's business model problem," though while it's a company's "mistake," it's still a crime to steal a car.

    in the end, it's a cat and mouse thing. the industry needs some piracy to thrive more, but too much piracy loses their money.

    just like beer, moderation is the key. isn't it?

     

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  80.  
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    Anonymous Coward, May 26th, 2008 @ 12:10am

    Re: how pathetic

    That you try and equate people who make movie music and games and don't want them taken for free, with slavery.

    You need to grow up and read some fucking history kiddo.
    If you think that just because something is legal it can't be morally reprehensible then you're the one who needs to study a little history. Slavery is just one of many, many examples to the contrary. You better find something else to hide behind.

     

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  81.  
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    Anonymous Coward, May 26th, 2008 @ 12:43am

    Re: Re: Re: The Pirate Bay Mentality

    This is a strawman response that does not address the issue at hand.
    I think it addresses the claim that something can't be morally reprehensible if it's legal quite well, thank you.

     

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  82.  
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    Anonymous Coward, May 26th, 2008 @ 12:54am

    Re: Re: Re: Do U Believe?

    jane M,

    Foul language an name calling don't really do much for your position. You and angry dude should learn that.

     

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  83.  
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    Anonymous Coward, May 26th, 2008 @ 1:43am

    I strongly suspect that Paul Morris, Jake M, Trudy M and Jane M are one and the same... not very imaginative on the aliases though!

     

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  84.  
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    Anonymous Coward, May 26th, 2008 @ 2:24am

    Re: Re: Re: Re: Re: The Pirate Bay Mentality

    Then let's kill the fags. After all the law allows it

     

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  85.  
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    Anonymous Coward, May 26th, 2008 @ 2:28am

    Re: Re: Re: The Pirate Bay Mentality

    But they're legaly in the WRONG because TPB is in SWEEDEN. And Legaly they can't do jack in sweeden, by sweeden's laws

     

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  86.  
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    Anonymous Coward, May 26th, 2008 @ 2:31am

    Re: Re:

    Well, no one's stealing the bits and bytes. It's just an exact replica, nothing more or less.

     

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  87.  
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    Anonymous Coward, May 26th, 2008 @ 2:34am

    Re: Re: Re: Re: Re: Re: Re: Do U Believe?

    "Must have been a leak. Could have been anyone's fault. It's out there. Nothing you can do about it. Infinate replication and all. You should have kept anyone from seeing it if you didn't want that to happen. Not our fault"

     

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  88.  
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    PaulT (profile), May 26th, 2008 @ 3:23am

    Re: Re: Re: Re: The Pirate Bay Mentality

    Wow. These comments took a downturn pretty swiftly...

    Christ, if you're going to post false claims about Sweden's legal position regarding TPB, you could at least spell their name properly.

     

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  89.  
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    MLS, May 26th, 2008 @ 7:39am

    Re: Re: Re: Re: Re: Re:

    "Again, you're missing the point."

    I believe you are missing my point. I did not state that the code is the business model. My statement was merely to note that without the code there would be no model to create because there would be nothing to offer to consumers.

    Having made this point, I then express a concern that unlawful duplication and distribution of content...the content, comprising the original code and enhancements (likewise code) thereto to improve the ultimate user experience...there is presented a significant disincentive for the author to create such content in the first place.

    The rejoinder is, or course, for creators to remove blinders and formulate new ways to generate an income stream by utilizing their creations to stimulate an interest in other goods for which consumers are willing to part with dollars that inure to the financial benefit of the content creators.

    This is all well and good when the content creator does have the ability and means at hand to create and offer such alternative goods. Unfortunately, not all content creators have this as a viable option. What is in my view a major failing of the techdirt mantra "offer scarce or die" does nothing to provide any meaningful guidance to those in this situation concerning how they may be able to pursue their chosen profession other than a few derisive comments such as "too bad...go get another job".

    Using music as an example, various models are offered to use free music as an incentive to generate interest for "scarce" items such live concerts, t-shirt sales, special CD versions, etc., etc. This is all well and good, and in some instances it may be more than sufficient to generate a revenue stream. But is this really a truly viable option in the majority of instances? I think not for a number or reasons.

    If techdirt does want to try and show content providers how to "turn lemons into lemonade", then more insight is needed than the ulitization of buzzwords/phrases such as "scarce", "infinite", "marginal cost", "property based models", "lighting my candle with yours", "monopoly", etc., etc. ad nauseum. To an author of books or music these words and phrases are absent from their vocabulary.

     

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  90.  
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    Dan, May 26th, 2008 @ 10:01am

    Reply to all I've been reading

    I've been reading Techdirt stuff for a while, and this is my first post as well.

    The way I perceive it, I agree with the whole “moderation is the key” concept. And while yes, I agree that it is not always the most sensible, plausable, or available option, it is the most effective. I don't remember which band it was, but I once heard that they were asked what they thought of the p2p/torrent network and its effect on sales, they simply replied that it's ok. It got their name out, and it effectively filled their concerts up. The thing is, there is no way to shut it down. It is the mythilogical hydra, and there are way too many ways that it can be released. With limewire, the install for limewire pro is available in the limewire network. Me, I download through the torrent network. I download through the p2p network as well. I listen to music, I sample and I buy. I simply don't have the funds to buy much good music of late, so it isn't exactly an option to pay ten, fifteen bucks for a cd (especially with gas shooting up faster than a speeding bullet, I just hope it follows the bullet's example and comes back down). The thing is, there are those who dl to sample, and those who dl to keep. Example, WoW, you could copy that cd all you want and spread it out, month free of WoW and free cd, they wouldn't care. Their source code is safe. It's the server that sells, and it's the network that attracts. Pirate the source code all you want, it's fine. Your server won't attract. However, the topic at hand is music. I downloaded... who was it... Thousand Foot Krutch recently, guess what cd I bought as soon as I found it. Thousand Foot Krutch. I downloaded Linkin Park, Minutes to Midnight, sampled, went to iTunes and bought it, burned, ripped the burn so I could have it on mp3 and not protected AAC. I do a podcast to have fun, and I need mp3 to do so. Is what I did with my cd illegal?

    I guess this is an argument (not so much a debate lately, but I'm debating fyi, and some people would do well to learn the difference) on morals AND legality. So I'll put it this way. Was it legal to sample minutes to midnight like I did? No. but was it helpful in my decision on whether or not to buy the cd? Yes. Was it moral, in this light, I think so.

    What this started as was a TPB discussion. Could the US touch them in a torrent/p2p friendly country? I dunno. How can you sue someone who doesn't live here for stuff that while yes, it affects you, but no, they go by diff laws. Show me a case where something of this nature happened. Not a US vs US, but a US vs foreign company over something like this, or similar. I'm not challenging, I'm curious. I'm just saying I don't see how it can be done. TPB is doing something perfectly legal where they're at. Sue Google for what they do. They're doing the same thing, but with a different product. They show you where you can get websites, but TPB shows you where you can get data, whether it be a song, a discography, a movie, or a program. It's not TPB giving it to you, they're showing you where it is. The cops can show you where drugs are, does that mean the cops can go to jail for it? They're showing you it's there. They aren't giving it to you.

     

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  91.  
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    Anonymous Coward, May 26th, 2008 @ 11:35am

    I find it curious that the distribution model for Hollywood Content is so broken that they find another country's laws as a strategic disadvantage necessitating new, erm.. worldwide (?) legislation and trade agreements.

    So why is the distribution business model so broken that people are willing to be break the law? What "need" isn't being satified by the current business model?

    I find this quite interesting.

     

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  92.  
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    Anonymous Coward, May 26th, 2008 @ 2:06pm

    Re: Re: disagree

    Actually, you are wrong, the media, the file, whatever is not what they are labelled as stealing. It is the song, the movie, the software, the piece that has value. You try to equate the disc with the data, the disc has no value on the data. Therefore they are taking what they do not have a right to, the end product.

     

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  93.  
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    Anonymous Coward, May 26th, 2008 @ 2:45pm

    Do I need a special license because I have a photographic memory ?

     

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  94.  
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    Anonymous Coward, May 26th, 2008 @ 4:02pm

    Re:

    no because you don't have skills necessary to replicate your memory in real life. lol

     

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  95.  
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    mobiGeek, May 26th, 2008 @ 7:21pm

    Re: Re: Re: Re: Re: Re: Re:

    MLS, no one is arguing the value of the software in the WoW case. But what PaulT is pointing out is that Blizzard's business model does not depend on the reliance of selling an infinite good (the software)...it is quite the opposite: they depend on giving the software away...for free.

    Their business model depends on selling a scarce resource: access to their servers. This is a finite resource, involving investment in hardware, network and limited IT knowledge in how to run and maintain the servers.

    Blizzard, in spite of a number of things they've mismanaged around WoW, are pretty much a staple case of Mike's push of using free in your business model.

     

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  96.  
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    Mark, May 26th, 2008 @ 7:33pm

    Re: disagree

    While I promote many "open source" efforts and some do work very well financially, that is not the same as simply taking someone else's work regardless of the law. Kevin points out that the deli example used mixes the apples (marketing issues) with oranges (theft). While one can make decent arguements agaisnt various IP arrangements, the arguement used to refute point 1 is faulty and is not accurate. Please fix the arguement or drop it.

     

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  97.  
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    Mark, May 26th, 2008 @ 7:39pm

    Re: Re: disagree

    PS: you don't normally buy music, software, etc. You rent them for indeterminate time under certain constraints. You should know the difference before ranting about how smart you are or dumb others are. Your buy it analogy is false. Better put, I rent one house and you decide to move into the neighborhood and just take another one that is for rent. Same exact house if you wish (since the software/music etc is the same). Ranting that everyone should just take what they want and the producers have no rights is the same crap the Marxists ranted for years and look what a great system they produced. Like it or not, IP protections were one of the great insights of the founders that created much of our wealth. While some of the recent efforts to enhance the protections are wildly wrongheaded, the basic idea of IP protection is critical to modern society. Even Linus has IP protection of his software.

     

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  98.  
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    PaulT (profile), May 27th, 2008 @ 1:56am

    Re: Re: Re: Re: Re: Re: Re:

    "My statement was merely to note that without the code there would be no model to create because there would be nothing to offer to consumers."

    But again, my point was that while the code is a product that allows them to make money, they do not make it directly from that code. They make it from selling other things. That's the point we're trying to get at - it may be better for a content creator to offer additional goods and make money from that (I think mobiGeek has put it a little more eloquently than I have).

    "To an author of books or music these words and phrases are absent from their vocabulary."

    That's where they might need to hire somebody with greater knowledge or access to said scare goods.

    For example, can't make a print run for your book? Try a print-on-demand service. Don't understand the way the business runs? Hire an agent who does. Some artists are good businessmen, others are not.

    You'll notice that at no point in these discussions are we saying "you have to go it alone", these are recommendations of business strategy. The problem is, there is a fundamental misunderstanding about these strategies among the people in charge of entertainment companies who prefer to blame the spectre of "piracy" than change the way they do business. I can understand them not wanting to, but that's the way business is - it's fluid and to stay on top you have to change.

    "Having made this point, I then express a concern that unlawful duplication and distribution of content..."

    Again, you're attempting to derail the discussion. None of what we're discussing has anything to do with illegally giving the content away. Blizzard themselves give away the software - they charge for server access.

    "Unfortunately, not all content creators have this as a viable option."

    This is where we disagree. Every artist worth his salt has several things to offer his or her fans. it's just a matter of leveraging those things. Mike write articles focussing on economics, so he uses economic terms, but these are just statements of fact - he's not making them up. Remember, everything written here is citing a real-life example of an artist doing something different, not hypothetical examples.

    On top of that, the "leverage the scarce goods" is by no means a new thing, maybe the terminology is new to you, but not the idea. The Grateful Dead have managed to make a good living for decades despite allowing concert recordings to be "stolen" and never having top 10 hits. In the house/trance club scenes, DJs have often create new music to get them noticed and get headlining gigs, often shunning the limelight to the point of using pseudonyms if the track they create becomes financially successful. Authors often "give away" chapters of their books in newspapers or the back sections of existing books to try and leverage further sales from those. The list goes on, even before the internet era.

     

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  99.  
    identicon
    Jeano, May 28th, 2008 @ 11:29am

    Re: disagree

    "Example, company A makes a music album and sells it in CD form, person b buys it for 10 dollars, makes copies of it, and sells 10 copies for 1 dollar. Company A has now lost 100 dollars of revenue."

    I don't think Company A has lost 100 dollars. It just may be that people won't buy the original CD for $10, but will buy for $1. The most that Company A has lost is $10.

     

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  100.  
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    J. Phillips (profile), May 28th, 2008 @ 11:32am

    Re: disagree -- an update to your analogy

    A movie studio makes a movie in the hopes that people will pay to watch it. When people choose a method of not paying, (not going to the theater, not buying the DVD, piracy) They are simply voting that the business model (method of distribution, fees charged, etc.) does not suit them.
    I would go do a deli every day for lunch, rather than make my own sandwich, if the prices were lower. There is no breakdown in the analogy there... The movie studios create a price based on the effort used to produce and distribute the movie. The deli creates a price based on the effort used to produce and distribute the sandwich.
    If I make an exact copy of the deli's sandwich and give it away for free I'm not stealing their sandwich, I'm stealing their business. The only way for them to compete is to find out what people like about my sandwiches when compared to theirs, and try to duplicate that quality.
    That is a cut and dry business model issue.
    (I'll leave it up to the Pros to discuss how to compete with free, how to convince the public to change their ways and all of those other things that come with overhauling a failing business in the face of changing market conditions.)

     

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  101.  
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    PaulT (profile), May 28th, 2008 @ 2:31pm

    Re: Re: disagree

    Exactly. The pitfall that most pro-industry people fall into here is the assumption that every download / pirated purchase = a lost sale at retail prices. A large percentage of people who buy the pirate CD will not have bought the original CD at $10. Some may not have bought it ever. Some may pick it up on eBay or a second hand store (where money may not go back to the original label), or in a sale at a reduced price. Some would never have bought the CD at any price.

    The company would never have seen the full retail price, and assuming they would have is the major reason why this argument is always so difficult to get across.

     

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  102.  
    identicon
    Hitler had ideas. Were they free?, Jun 14th, 2008 @ 11:47pm

    IP crime is not victimless

    IP is worth over $400 billion to the US economy according to the U.S. Government Accountability Office. It is worth far more around the world. If we can't respect the value of human ideas, then we shall ultimately lose our respect for humanity itself. Pirates, welcome yourselves to the slippery slopes of anarchy.

     

    reply to this | link to this | view in thread ]


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