Understanding The Backlash Cost In Copying Someone Else's Work

from the thinking-things-through dept

Earlier this month, we wrote about a neat marketing campaign put on by the Eepy Bird guys using tons of Post-It Notes. It wasn't clear if 3M, the makers of Post-It Notes was actually involved or not -- but it appears the company is busy at work on its own viral marketing campaign, though it's off to a poor start. As a bunch of folks have sent in, 3M apparently decided to make make its own car covered in Post-It Notes photo after the company failed to license the original photo that was made famous a few years ago.

Now, I find the people who claim that 3M was "stealing" the concept just as (if not more) silly as those who claim that downloading an unauthorized song is "stealing." 3M tried to license the photo and couldn't agree on a price, so it made its own. It didn't "steal" the idea, it just found it more cost effective to do it on its own (the classic buy vs. build decision). However, it does appear that the company didn't take the backlash cost into account in figuring out that buy vs. build equation.

This is actually quite important. Often, when we talk about things like plagiarism or copyright infringement, people insist that others will always "rip you off" and copy your work and there's absolutely no recourse. Yet, they fail to acknowledge the importance of reputation. If you are caught so uncreatively copying someone else, without doing anything new or innovative on top of that, it's not surprising that people will call you out, often vehemently, for your uncreative copying efforts. That can have quite a big cost in terms of reputation and credibility, probably a lot more than it would have cost to have reached an agreement with the original creator. So, before thinking it's so easy for big companies flat out "rip off" someone else's creative work, just remember that there are some pretty serious hidden reputation costs in them doing so.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Howard_NYC, Sep 29th, 2008 @ 12:02pm

    after the fuss... a shrug...

    Q: and after the fuss fades out... what?

    nobody will be fired, nothing much will happen... reputation has little to do with bottom line stuff... ask the knuckleheads who brought down the financial market... they will lose their current jobs and have new ones in a month or two...

     

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  2.  
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    Marie, Sep 29th, 2008 @ 12:16pm

    Intellectual Property Rights

    "Now, I find the people who claim that 3M was "stealing" the concept just as (if not more) silly as those who claim that downloading an unauthorized song is "stealing.""

    The above paragraph you wrote --

    If you don't pay for the song, aren't you stealing the song. What is you view on downloading music without compensating the talent?

     

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  3.  
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    hellslam, Sep 29th, 2008 @ 12:23pm

    Re: Intellectual Property Rights

    Wow.

    I don't think you are going to get a lot of traction comparing downloading to theft on this site, mostly because copyright infringement is not theft, it's copyright infringement. One is a crime, the other is a civil matter.

     

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  4.  
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    mike allen, Sep 29th, 2008 @ 12:34pm

    Re: Intellectual Property Rights

    No you are not stealing the song if you don't pay for it.
    You are infringing copyright if you download it from a P2P network maybe but not stealing. for the following reasons.
    1 The song is there on offer to anyone to down load.
    2 You are just taking advantage of an offer.
    apart from that There are a number of ways to get music for free for example free downloads from artists.
    creative commons license etc.
    I have not paid for music for years yet every track in my collection is legal and authorized.
    Simply I as i have stated before work in radio record companies and artists send me tracks to use on the show both major and Indy i dont pay for them yet they are perfectly lagit. so you are wrong.

     

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  5.  
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    Dosquatch, Sep 29th, 2008 @ 12:35pm

    Re: Intellectual Property Rights

    What is you view on downloading music without compensating the talent?

    You must be new here.

     

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  6.  
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    Mike (profile), Sep 29th, 2008 @ 12:41pm

    Re: Intellectual Property Rights

    If you don't pay for the song, aren't you stealing the song

    I'm guessing you're new around here. It may help to do some looking around.

    But the basic answer is that no, you are not "stealing" the song. No one has *lost* anything. You may be infringing on the copyright of the song, which is illegal, but you are not stealing anything -- which implies having removed something from the original owner.

    What is you view on downloading music without compensating the talent?

    That's a loaded question. I think that if the creator of the music does not want you to do it, then it it is most likely copyright infringement, which is against the law (there are some exceptions).

    But, I also think it's silly for musicians to not allow it. A smart musician recognizes that there are ways to leverage the free file sharing of his or her music, and uses that to pump up other areas of his or her business model.

     

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  7.  
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    Keith Jolie, Sep 29th, 2008 @ 12:42pm

    Where exactly do people get the idea that copyright infringement is not a crime??

    Copyright Law of the United States of America
    and Related Laws Contained in Title 17 of the United States Code, Circular 92, Chapter 5 that outlines Copyright Infringement and Remedies, Section 506 (Criminal offenses) states:

    (a) Criminal Infringement. —

    (1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

    (A) for purposes of commercial advantage or private financial gain;

    (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

    (C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

    (2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

    (3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

    (A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —

    (i) the copyright owner has a reasonable expectation of commercial distribution; and

    (ii) the copies or phonorecords of the work have not been commercially distributed; or

    (B) a motion picture, if, at the time of unauthorized distribution, the motion picture —

    (i) has been made available for viewing in a motion picture exhibition facility; and

    (ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

     

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  8.  
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    KJ, Sep 29th, 2008 @ 12:57pm

    btw - I was responding to hellslam specifically with all the legal crap. Basically I'm just saying - that although technically downloading songs is not always illegal, and may not even be copyright infringement, you need to be careful.

    Basically, as soon as you use a peer to peer file sharing program you start to open yourself up to legal ramifications, more than simply downloading.

    I'm no lawyer (or rocket scientist for that matter) but unless you're absolutely certain about laws, you need to remember that ignorance is no defense.

     

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  9.  
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    Rob, Sep 29th, 2008 @ 12:59pm

    Exploding Ford Pinto

    Remember when it was reveled that the management decided it was more cost effective to pay off the estates of people who died when their rear-ended Pintos exploded than to fix the gas tank location problem? I always wondered why anyone bought another Ford after that. Shouldn't there have been such a backlash that their business would fail just like Arthur-Anderson after the Enron debacle?

     

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  10.  
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    KJ, Sep 29th, 2008 @ 1:06pm

    Ok so technically it's not stealing...but I have to agree with this...

    "Now, no matter what the mullah teaches, there is only one sin, only one. And that is theft. Every other sin is a variation of theft... When you kill a man, you steal a life. You steal his wife's right to a husband, rob his children of a father. When you tell a lie, you steal someone's right to the truth. When you cheat, you steal the right to fairness... There is no act more wretched than stealing, Amir."

    The Kite Runner by Khaled Hosseini - pg17/18

     

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  11.  
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    John Jacob Jingle..., Sep 29th, 2008 @ 1:06pm

    Stealing...

    Stealing is taking something (THING) that you do not have permission to take. What makes stealing so bad is that the owner no longer "HAS" the THING.

    If you copy a song, the owner is not LOOSING the item. Indeed, he could reproduce the item at will. So it is not STEALING.

    Some say... you are STEALING money from the artist. This is false as well. The owner did not POSSESS your money to begin with, so you can not STEAL something which he did not OWN.

    So, if someone insists that a person who copys a file is STEALING presupposes that the song's creator OWNED your money to begin with, and that you are STEALING it back.

    It's silly really.

    If you want to get bibical.... copying a song is not stealing. It technically would be considered LUSTING. You lust (desire) the song and then you copy it.

    So in the end... the bottomline is.... the devil made you do it.

     

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  12.  
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    Anonymous Coward, Sep 29th, 2008 @ 2:04pm

    Re: Stealing...

    The artist/record company lost a potential sale. That is something. But then again, you seem to be completely ignorant paying for a product.

     

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  13.  
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    Anonymous Coward, Sep 29th, 2008 @ 2:11pm

    I fail to see the logic behind saying that copyright infringement as not theft. It seems like fallacy, but then again I am sure somehow I am wrong. Do you believe you are entitled to download music?

     

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  14.  
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    DittoBox, Sep 29th, 2008 @ 2:16pm

    Re: after the fuss... a shrug...

    I hate to contradict TechDirt here but I have to agree with Howard. Not much is going to happen on 3M's side. Maybe they'll get some bad press for a little while and one person might be let go, but I doubt it will have any sort of lasting impact on their business.

    I know several designers and artists who's creative work has been either fully ripped off, or directly copied by smaller businesses or non-profits. Very little can be done here since it's the local community that needs to know who is ripping off who. These guys never get compensated and the local joint that screwed them will never get caught unless the artist takes them to court...over copyright infringement. Here's where these copyright suits are designed to work their best.

    Quickly and successfully exposing the shady side of local businesses is much more difficult than getting a dozen or so blogs to post about how a giant multi-national just screwed you.

    Quantify "reputation," give me sales numbers that reflect the lost reputation as opposed to established norms and then you've got a case.

    Sorry but copyright infringement suits aren't going anywhere, and they shouldn't. The organized crime that the RIAA is party to, such as racketeering and extortion is wrong but small time artists are what copyright was designed for.

     

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  15.  
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    Anonymous Coward, Sep 29th, 2008 @ 2:23pm

    Re: Re: Stealing...

    No, they haven't. There is nothing about downloading a file from the network that precludes a potential sale. Does listening to a song on the radio preclude a potential sale? Does hearing the song over at your friends house preclude a potential sale? Checking a CD out from the local library?

    Why is borrowing a CD from a friend or the library ok, but downloading a digital only file from the internet evil?

    Which of the following will most likely result in people purchasing a CD, either for themselves or for a friend as a gift:

    1. Hearing a song only after it has been purchased?

    2. Hearing it free of charge on the radio for weeks on end?

    How is hearing a song on your computer repeatedly fundamentally different from hearing it on the radio repeatedly? Why would the latter cause you to buy a CD while the former will not?

    The "lost potential sale" meme is just nonsense. Please stop perpetuating it.

     

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  16.  
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    Dosquatch, Sep 29th, 2008 @ 2:35pm

    Re:

    Copyright infringement is not theft in the same way a xerox machine is not stealing a book.

     

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  17.  
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    Anonymous Coward, Sep 29th, 2008 @ 3:01pm

    Re: Re: Re: Stealing...

    Having a copy of the song and listening to the song are two different things. I think you know that or you are just a moron. I guess you drink mike's kool-aid so the latter might be more true.

     

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  18.  
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    Anonymous Coward, Sep 29th, 2008 @ 3:04pm

    Re: Re:

    Ummm...that comparison is the most stupid thing I have ever heard. Once again, who are you people, and why do you have no understanding of the law that exists. You only want to twist it to benefit you.

     

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  19.  
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    Rose M. Welch, Sep 29th, 2008 @ 3:23pm

    Re: Where exactly do people get the idea that copyright infringement is not a crime??

    By crime, they mean a criminal offense. Copyright infringement is supposed to be a civil offense. Hence. not a crime.

     

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  20.  
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    Rose M. Welch, Sep 29th, 2008 @ 3:25pm

    Re: Re: Re:

    *pats the trolls head*

    You are such a cute troll! Go bug a LiveJournal community... You'll have better luck there.

     

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  21.  
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    Dosquatch, Sep 29th, 2008 @ 4:59pm

    Re: Re: rere

    that comparison is the most stupid thing I have ever heard.

    That comparison is the most directly on-point analogy you're going to find. Making a copy is making a copy. Period. Theft is taking your property from you. Period.

    If I make a copy of your property, you still have your property - it is NOT stolen. It is possible, though, that I may have violated some aspect of your "intellectual property", but that is its own offense and that offense is not, legally, theft.

    Once again, who are you people, and why do you have no understanding of the law that exists

    I dare say we have a better grasp than you.

    You only want to twist it to benefit you.

    You make assumptions. I've not said here how I feel about the law, I've only pointed out that copyright infringement and theft are legally separate concepts.

     

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  22.  
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    Mike (profile), Sep 29th, 2008 @ 5:09pm

    Re: Re: Stealing...

    The artist/record company lost a potential sale. That is something. But then again, you seem to be completely ignorant paying for a product.

    Losing a "potential sale" is not theft. Otherwise, the pizza store down the road would be "stealing" from the deli next door every time I decide to get pizza over a sandwich. After all, if it weren't for the pizza shop, I'd buy a sandwich. So clearly, the deli "lost a potential sale."

    Yet we don't call it theft.

    So why would you?

     

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  23.  
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    Mike (profile), Sep 29th, 2008 @ 5:12pm

    Re:

    I fail to see the logic behind saying that copyright infringement as not theft.

    It's pretty straightforward, as we laid out above:

    If something has been taken away from someone and they no longer posses it, that's theft.

    If something has just been "copied" and the originator still has their copy then it *may* be infringement, depending on a variety of circumstances.

    Do you believe you are entitled to download music?

    No. I thought we made that clear.

    I would suggest you read what we write before you comment.

     

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  24.  
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    Ted McClure, Sep 29th, 2008 @ 7:36pm

    Related article

     

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  25.  
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    Anonymous Coward, Sep 30th, 2008 @ 5:42am

    Re: Stealing...

    John Jacob Jingle

    2 things

    1 - you're quality of logic has been used with great success by Monty Python for years - I think you might be a witch.

    2 - I wasn't trying to get biblical, but if I were, it's not lusting...it's covet.

     

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  26.  
    identicon
    Anonymous Coward, Sep 30th, 2008 @ 5:58am

    Re: Re: Re: Stealing...

    "How is hearing a song on your computer repeatedly fundamentally different from hearing it on the radio repeatedly? Why would the latter cause you to buy a CD while the former will not?

    The "lost potential sale" meme is just nonsense. Please stop perpetuating it."

    In all of the cases that you mention the difference is very clear. In the case of the library or the friend, you have to return the material. In the case of the radio, you have no control over when you can listen to it.

    The reason those models work is because the average person wants to be able to listen to what they want when they want - and that's what you pay for when you buy music.

    Radio stations, bars and libraries pay the artist to play or loan the music so that you don't have to (that's what performance rights are)

    I'm curious - when you download music to see if you want to buy it. Do you always delete it once you've made your decision? If you don't, then your diatribe is pretty empty.

     

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  27.  
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    Anonymous Coward, Sep 30th, 2008 @ 6:02am

    Re: Re: Re: Stealing...

    The difference in your deli example is simple. You maybe wanted a sandwich but the pizza was cheeper so you bought pizza. You chose to pay for pizza. You don't have a sandwich.

    When you download music, you have the pizza, you have the sandwich, and neither the pizzaria nor the deli have your money.

     

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  28.  
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    Anonymous Coward, Sep 30th, 2008 @ 6:23am

    Re: Re:

    Dosquatch

    Photo copying a book is analogous to downloading music

    Both are copyright infringement, and both are illegal.

    But the photocopy machine is only analogous to whatever means you use to copy the music.

    So, no.

     

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  29.  
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    Anonymous Coward, Sep 30th, 2008 @ 7:26am

    Yeah, because plagerizing a paper could keep you from becoming Vice President of the United States.

    Oh wait, maybe it doesn't.

     

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  30.  
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    Anonymous Coward, Sep 30th, 2008 @ 7:28am

    So just to be clear - the criminal offense related to stealing or larceny in the US is state legislature and varies from jurisdiction to jurisdiction except in some federally legislated situations. State Larceny laws sometimes cover non-corporeal items (so you don't necessarily need to be able to physically remove something from someone's possession for the act to qualify as larceny).

    Copyright infringement is legally not stealing in the US, because it falls under different legislation that is more specific and that is not state regulated.

    Breaking the law is still breaking the law.

     

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  31.  
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    Dosquatch, Sep 30th, 2008 @ 8:54am

    Re:

    Copyright infringement is legally not stealing in the US, because it falls under different legislation that is more specific and that is not state regulated.

    Er, no. Copyright infringement is not legally stealing because it is not stealing. It is copyright infringement. It falls under different legistlation because it is conceptually different. Copyright law defines infringement for what it is, it does NOT treat it as a more narrowly defined form of theft.

    Breaking the law is still breaking the law.

    Discussing the nature of the law is how we, as a free society, find our way to more equitable laws. The law is mutable, not absolute, and where and when it is wrong it is subject to change.

    Court interpretation of existing laws can sometimes surprisingly and dramatically change the meaning of the law even without the letter of the law changing.

     

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  32.  
    identicon
    Dosquatch, Sep 30th, 2008 @ 9:02am

    Re: Re: Re:

    Photo copying a book is analogous to downloading music

    Yes it is, that's why I used that example. Again, directly on point.

    Both are copyright infringement, and both are illegal.

    Outside of the provisions of Fair Use, yes.

    But the photocopy machine is only analogous to whatever means you use to copy the music.

    So, no.


    ummm.... wha..? No, what? No, my analogy doesn't hold water? No, it's not theft? No, I'm an idiot? No, and the world shall know with me?

    Help. A little help here.

     

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  33.  
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    Dosquatch, Sep 30th, 2008 @ 9:12am

    Re: Re: "Lost Potential Sale"

    The artist/record company lost a potential sale. That is something.

    You make a fundamental mistake here - you assume the sale. You assume that the value you place in pricing your trinket is the value would be paid by every individual who consumed for free were free not available.

    This is fallacy.

    you seem to be completely ignorant [of] paying for a product.

    Then you have not read deeply enough of what Mike has written here over the years. Go forth, research.

     

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  34.  
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    Anonymous Coward, Sep 30th, 2008 @ 8:29pm

    What part of "potential" don't you understand?

     

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  35.  
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    Dosquatch, Oct 1st, 2008 @ 6:32am

    Re: "lost a potential sale", take two

    What part of "potential" don't you understand?

    Then your argument is even more ludicrous, for the "potential" for the sale still exists. Hence, not lost.

    And, given the findings in plenty of credible studies, increased downloading may very well increase the "potential" sales.

     

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  36.  
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    Anonymous Coward, Oct 1st, 2008 @ 7:28am

    "may very well" of course, but also, it may very well not. Who is to say it increases the sales? You? Me? Credible studies? All we can say is there is the "potential" for an increase. There is also the "potential" that sales will go down.

     

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  37.  
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    Dosquatch, Oct 1st, 2008 @ 8:45am

    Re:

    Who is to say it increases the sales? You? Me? Credible studies?

    I'll take "Credible Studies" for a thousand, Alex.

    I mean, gosh, who's to say that gravity causes masses to come together? You? Me? The laws of physics? I mean, sure, there's "potential" energy there, but who are we to trust all of this "science" mumbo jumbo that says it converts to "kinetic" energy?

    I, for one, choose to believe that it's the hand of God pushing things down.

    Or something to that effect. Look, all I'm saying is, if you're going to choose to dismiss evidence out of hand just so you can continue to believe whatever you want, then this conversation has no purpose.

     

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  38.  
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    Anonymous Coward, Oct 2nd, 2008 @ 1:04pm

    I dismissed nothing. You stated that sales may increase. Of course, they may not. Studies show sales may increase, but that doesn't mean they have to. They could go down.

    Now if you come out and say that there is a law of economics that proves that sales increase, I will accept that. but there isn't, is there? There may be, but maybe not.

     

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  39.  
    identicon
    Dosquatch, Oct 2nd, 2008 @ 1:59pm

    Re: I've got a name...

    So who are you?

    Studies show sales may increase,

    Mmm hmm.

    but that doesn't mean they have to. They could go down.

    But if that were the case, the studies would show that instead. Tossing out what the studies actually show just for the perk of saying that they could show something else ... well, I'm calling that dismissive, but if you'd rather call it something else, I won't stop you.

    Now if you come out and say that there is a law of economics that proves that sales increase, I will accept that. but there isn't, is there?

    There is, kinda. People excited about your product tend to use more of your product, whatever it might be. Market awareness increases excitement, generally. This is called "advertising" or "marketing", and large, successful companies usually have entire departments devoted to nothing but.

    I don't quite know if there's a law in there, exactly, but I'm pretty comfortable that the large successful companies wouldn't do this if it didn't reliably work.

    Record companies do exactly this - they spend money to make sure people hear their record more often. It's called "payola".

    Oh, wait - that "doesn't exist" anymore. Wink wink nudge nudge.

    And as someone else asked earlier, from a marketing standpoint, what is fundamentally different between listening to the radio vs grabbing a torrent?

    And don't say "having a copy" changes the game. It doesn't. I can just as easily record the song off the air, and "have" my copy, and it's perfectly legal according to the AHRA.

     

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  40.  
    identicon
    hennry, Oct 4th, 2008 @ 2:17am

    Some shareware copyright owners may send a license upon receipt of the required fee, but others do not, and the user will not have proof of a right to possess a copy. There is also a class of software likely to exist on college campuses that has been created by persons employed or studying there and is freely available to others. The users of freeware will not have a written permission or a license to use such software, only an implied permission. --------------------------------
    hennry
    search engine marketing

     

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