Techdirt. Stories filed under "morality"

Scientist Explains Why Putting Research Behind A Paywall Is Immoral

Mike Masnick — Fri, 18 Jan 2013 10:10:04 PST

There's been plenty of debate recently over "open access" to research and the morality of locking it up behind a paywall. Some have been arguing that Aaron Swartz's apparent plan to release JSTOR research papers (a plan that was never confirmed anywhere that I've seen other than random speculation) was somehow immoral. And, of course, there have been various battles over the years with various journals that lock up research. Researcher Mike Taylor, over at the Guardian is now making the case that if anything is immoral it's locking up any academic research behind a paywall:

If you are a scientist, your job is to bring new knowledge into the world. And if you bring new knowledge into the world, it's immoral to hide it. I heartily wish I'd never done it, and I won't do it again.

He goes on to respond to a number of possible responses as to why it's okay to put your research behind a paywall, dismantling each one. One key one is the claim by many that paywalls on journals are necessary to fund scholarship:

No. This is the tail wagging the dog. The purpose of a scholarly society is to promote scholarship, which is best done by making that scholarship available. A society that cares more about preserving its own budget than about the field it supposedly supports has lost its way. Societies need to find other ways to fund their activities. And yes, I am talking to you, Society of Vertebrate Paleontology (my own field's society). You cannot support the science of vertebrate palaeontology by taking science and hiding it where most people can't see it.

Somewhere along the way, things got flipped and people seemed to forget the true purpose of scholarship (and the fact that scholarship -- perhaps even more than other areas -- relies on the ability to build off of the work of those who came before). In the end, and this is a key point, if you're locking up your scientific research, you're doing science wrong:

No, no, no. Dammit, we're scientists. Our job is to make knowledge. If we make it, then brick it up behind a wall, we're wasting our time and our funders' money – which ultimately means we're squandering the world's wealth.

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Tell Paypal To Stop Playing Morality Cop With Booksellers

Mike Masnick — Fri, 9 Mar 2012 14:54:42 PST

We recently wrote about how Paypal was pressuring Smashwords to drop any books that included sexual content that Paypal didn't like. This seemed ridiculously over-aggressive. You can be completely against rape without that meaning that no books shall exist that include a rape scene. But according to Paypal's rules, books that include themes around rape, incest and bestiality -- even if such books were there to raise awareness around those things, not to encourage them -- simply were not allowed. Smashwords claims that Paypal is passing the blame on to the credit card companies, but others have questioned how accurate that really is. And, even then, it seems that Paypal should stand up to the credit card companies if that is, indeed, the case.

In the meantime, the EFF has put together a letter writing campaign to tell Paypal to stop censoring books:

Recently, PayPal gave online publishers and booksellers, including BookStrand.com, Smashwords, and eXcessica, an ultimatum: it would close their accounts and refuse to process all payments unless they removed erotic books containing descriptions of rape, incest, and bestiality. The result would severely restrict the public's access to a wide range of legal material, could drive some companies out of business, and deprive some authors of their livelihood.

Financial services providers should be neutral when it comes to lawful online speech. PayPal’s policy underscores how vulnerable such speech can be and how important it is to stand up and protect it.

The topics PayPal would ban have been depicted in world literature since Sophocles’ Oedipus and Ovid’s Metamorphoses. And while the books currently affected may not appear to be in the same league, many works ultimately recognized for their literary, historical, and artistic worth were reviled when first published. Books like Ulysses and Lady Chatterley’s Lover were banned as “obscene” in the United States because of their sexual content. The works of Marquis de Sade, which include descriptions of incest, torture, and rape, were considered scandalous when written, although his importance in the history of literature and political and social philosophy is now widely acknowledged.

You can go to the link above and add your name to the campaign and let Paypal know that this is not the role of a payment processor.

Of course, what this story is really highlighting is just how ridiculous it is that there are choke points like Paypal who can solely dictate morality based on their own views of what is and what is not art. What we need are a lot of alternatives, so that if Paypal makes decisions like this, people can simply route around them.

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Paypal Pressured To Play Morality Cop And Forces Smashwords To Censor Authors

Zachary Knight — Mon, 5 Mar 2012 08:21:18 PST

We have become quite accustomed to Paypal arbitrarily deciding to shut down the payment services for a website with no warning and little recourse. Usually when it does so, it acts through its own volition. However, Paypal also has to deal with the whims of the credit card companies with which it is partnered. With that business arrangement, when a credit card company says to jump, Paypal must comply. When it does so, it effects all its own customers as well. Ebook publisher Smashwords reports that it has become one of the latest recipients of one such action. Under pressure from credit card providers, Paypal has put in place a policy that it would no longer process payments for ebooks that contained themes of rape, incest, beastiality and underage sexual content. It then decided to give Smashwords less than a week to remove all books that fit those criteria.

On Saturday, February 18, PayPal’s enforcement division contacted Smashwords with an ultimatum. As with the other ebook retailers affected by this enforcement, PayPal gave us only a few days to achieve compliance otherwise they threatened to deactivate our PayPal services. I've had multiple conversations with PayPal over the last several days to better understand their requirements. Their team has been helpful, forthcoming and supportive of the Smashwords mission. I appreciate their willingness to engage in dialogue. Although they have tried their best to delineate their policies, gray areas remain.

Their hot buttons are bestiality, rape-for-titillation, incest and underage erotica.

This has put tremendous pressure on Smashwords to comply as it claims that it would be near impossible to change payment processors as Paypal is a major part in not only how it processes transactions but also how it pays its authors. So it has made several changes to its terms of service to account for the types of books that Paypal and its credit card partners are not happy about. Keep in mind, this is hard for Smashwords as it feels that authors of erotica are being unfairly targeted by this move.

We do not want to see PayPal clamp down further against erotica. We think our authors should be allowed to publish erotica. Erotica, despite the attacks it faces from moralists, is a category worthy of protection. Erotica allows readers to safely explore aspects of sexuality that they might never want to explore in the real world.

The moralists forget that we humans are all sexual creatures, and the biggest sex organ is the brain. If it were not the case, none of us would be here. Erotica authors are facing discrimination, plain and simple. Topics that are perfectly acceptable in mainstream fiction are verboten in erotica. That’s not fair.

This is an unfortunate set back for Smashwords as well as for indie authors. While the government in the US is not able to censor speech in this manner, there is little preventing a private company like Paypal or its credit card partners from taking these actions. Yet, Smashwords is not giving up hope. In its latest update, Smashwords notes that it had managed to get the deadline extended as well as the definitions of prohibited content relaxed. It also wants to clarify that neither it nor Paypal are the real villians in this issue.

A lot of people have been attacking Smashwords for my decision to comply with PayPal's requirements. They're pointing their arrows at the wrong target, and they're not helping their cause. We're working to effect positive long term change for the entire Smashwords community, and that includes all our erotica authors and readers.

Over the weekend, many Smashwords authors and publishers demanded we abandon PayPal and find a new payment processor. It's not so simple, and it doesn't solve the greater problem hanging over everyone's head. PayPal is trying to implement the requirements of credit card companies, banks and credit unions. This is where it's all originating. These same requirements will eventually rain down upon every other payment processor. PayPal is trying to maintain their relationships with the credit card companies and banks, just as we want to maintain our relationship with PayPal. People who argue PayPal is the evil villain and we should drop them are missing the bigger picture. Should we give up on accepting credit cards forever? The answer is no. This goes beyond PayPal. Imagine the implications if credit card companies start going after the major ebook retailers who sell erotica?

Smashwords then continues by expressing its goal of pulling the credit card companies out into the open to discuss these issues. The behavior of the credit card companies shown here is exactly the type of behavior we advocated against when fighting SOPA/PIPA. Those bills would have given credit card processors the abiltity to kill payment services to companies alledged to be illegal. We warned that such behavior would result in additional harm as legal speech would be swept up along with the potentially illegal speech. Here we see just that. These credit card companies are using their position to censor speech -- some of which may violate obscenity laws, but much of which is likely perfectly legal, protected speech. This is a no win situation for Smashwords. By complying, it must censor the speech of its authors. By not complying, it would lose the ability to serve all its authors.

Finally, Smashwords suggests a plan of action. It wants everyone to work together to put public pressure on the credit card companies in order to get them to change their stance. We saw how effective such efforts were with SOPA/PIPA. We managed to pressure Godaddy and the ESA to drop their support. We can do the same for these credit card companies and their policies that result in censorship.

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Who Cares If Piracy Is 'Wrong' If Stopping It Is Impossible And Innovating Provides Better Solutions?

Mike Masnick — Wed, 29 Feb 2012 11:42:52 PST

It appears that the same arguments that many of us have been fighting for many, many years are suddenly playing themselves out again in the National Review Online. It started with a really fantastic article by Reihan Salam and Patrick Ruffini arguing that legislating to deal with "piracy" doesn't work and is the wrong approach anyway, because innovating and providing better solutions simply works better. If you're a regular Techdirt reader, you won't be surprised by the Salam/Ruffini piece -- it hits on many of the key points we've raised. However, it is nicely packaged up in a single article that should be required reading for anyone trying to understand why fighting piracy through legislation is the wrong approach.

In response, Robert VerBruggen, an associate editor at the National Review decided to write a rebuttal that isn't so much a rebuttal at all. As Tim Lee rightly points out, the two sides appear to be arguing totally different things. Salam and Ruffini are pointing out that enforcement isn't working (and isn't workable), while also leading to collateral damage. But, at the same time, innovating and providing solutions that people want do seem to work -- and create new opportunities for content creators and consumers alike. VerBruggen, on the other hand, is pulling out the famed "but... but... piracy!" argument we've seen too often -- as if the fact that "piracy exists" suddenly makes all logic pointless. As Lee notes:

VerBruggen responds by insisting that piracy is wrong. He’s right, but this doesn’t get him as far as he thinks it does. This isn’t just an abstract exercise in moral philosophy. The government has limited resources, and a long list of problems to deal with. The question isn’t “should the government try to stop piracy,” it’s “how many resources should the government devote to combatting piracy as opposed to other problems.”

And VerBruggen never really grapples with this question. He seems to believe that the right amount of enforcement is more than we already have, but he doesn’t offer any principled basis for deciding how much more, or how to tell when we’ve passed the point of diminishing returns. Without such a principle, we’re just going to have this debate over and over again, as each new anti-piracy measure fails and Hollywood comes back for still more restrictions.

This is a key point, and I don't know if VerBruggen is just new to this debate and therefore trotting out silly, long-dead tropes because he doesn't know any better -- or if that's just the best the "other side" can do these days. Either way, I wanted to dig a bit deeper into a few of VerBruggen's really questionable claims.

When brick-and-mortar bookstores complain about the threat they face from Amazon.com, they are complaining that customers will leave them for a superior alternative; when Hollywood complains about piracy, they are complaining that customers have left them for an illegal alternative. They have stopped paying for Hollywood products yet are still consuming them. These are not even remotely similar situations — morally, legally, or economically.

VerBruggen says this as if "an illegal alternative" and "a superior alternative" are mutually exclusive. They're not. And that's the issue. History has shown, time and time again, that infringement is a way for consumers to express that they're not satisfied with the official versions and have found "a superior alternative." That the said alternative is "illegal" is an issue, but it doesn't necessarily mean that the best response is a legal one. Why VerBruggen makes these assumptions is unclear.

With this distinction in mind, one might find it rather odd for Salam and Ruffini to insist that the solution to piracy is “innovation” rather than law enforcement. By “innovation,” they mean primarily that Hollywood should make it easier and cheaper for customers to buy their content digitally, citing studies indicating that when digital content becomes readily available through legal channels, piracy goes down. But even assuming Hollywood can discourage piracy by cutting prices and offering its content in different ways, since when do we tell crime victims to appease their tormenters?

As far as I can tell, this is the craziest part of VerBruggen's argument. It is, effectively, "so what if everyone can be better off by innovating out of this mess, this is wrong wrong wrong!" As we've pointed out for years, if you have a solution where everyone is better off, there is no moral argument. It seems silly to be arguing what VerBruggen seems to be arguing, that it's more moral to have everyone worse off with no piracy, than to have everyone better off with some piracy. It just doesn't add up.

Moreover, in no other industry do we allow consumers to force prices down by taking products for free whenever they, personally, think the legal versions are too expensive or inconvenient. Any customer may refuse to buy a product that’s undesirable, or even organize a boycott — but then that customer needs to go without the product.

The problem here is easy to spot. It's in the word "take." That's not what's happening here. The truth is that, as in every other industry, consumers force down prices by finding "a superior alternative" as he suggested earlier. Taking implies something is directly taken from the creator and they no longer have it. That's simply not true.

Salam and Ruffini provide no justification for singling out industries that sell intellectual property — and little evidence that these industries’ disproportionately young, bratty, and entitled consumers are better equipped than the free market to decide what a “fair” price is for an album or movie that cost thousands or even millions of dollars to create and market.

I won't even bother discussing the fact that he appears to be calling the industry's customers, who they're supposed to be trying to win over, as "young, bratty and entitled," and just focusing on his bizarre definition of "free market." He seems to miss that this is the free market. Setting up a centralized government-granted set of artificial monopolies over non-rivalrous, non-excludable goods is a price restriction on a free market. A "fair price" is what the actual market sets -- and that means the market of everyone, not just the customers that VerBruggen likes.

For starters, while making content widely available for low prices does seem to reduce piracy, it hardly eliminates it.

Er. Enforcement and new laws every two years has hardly eliminated it either -- in fact, it's been shown to increase the rate of piracy. So, I'm at a complete loss here. If VerBruggen is arguing that the only proper solution is the one that "eliminates" infringement, well, then he's living in a fantasy land, because no such solution exists. The argument that Ruffini and Salam made (which is backed up with pretty significant evidence) is that innovating and providing "a superior alternative" does a better job to reduce piracy than enforcement (which doesn't appear to work at all beyond an initial hit until people scramble and find alternatives). Again, we're back to VerBruggen basing his entire argument on "piracy is wrong wrong wrong," without taking into account what his preferred solution actually does compared to Salam and Ruffini's alternative.

Spotify’s payment formulas are not public, but various leaks indicate that on average, artists and labels are paid around one-third of one cent every time a user listens to (“streams”) a song. By way of comparison, artists and labels make 70 cents when a song is purchased for 99 cents from iTunes. Thus, a user has to listen to a song on Spotify more than 200 times before earning ad revenue for the artist and label that’s equivalent to a sale.

Comparing a Spotify play to an iTunes purchase is meaningless, because they're not the same thing by any stretch of the imagination. I mean, why not compare Spotify to radio? In some ways, that may be more comparable. In the US, musicians get paid a big fat nothing for radio plays. Yet, somehow, it's been pretty damn important for artists to get on radio. Because it helps them make money elsewhere. Looking at Spotify in isolation misses the point... but VerBruggen does that again and again:

But piracy does “put pressure on profit margins,” as Salam delicately put it on National Review Online recently. By one estimate, per capita, inflation-adjusted spending on recorded music has fallen 64 percent since its peak in the late 1990s, and is lower today than at any time since at least 1973, despite the fact that every other person you pass on the street is wearing earbuds.

Again, he's looking at one small aspect of the music business in isolation: how much is spent on recorded music. But he leaves out every other aspect of the music business -- including things like live -- which has grown at an incredible rate over the same time. More importantly, he leaves out that artists earn a larger chunk of revenue from live than they do from recorded music sales -- most of which go to the labels, not the artists. Why focus on that anyway? It's like complaining that automobiles are terrible for transportation because fewer buggy whips are selling. When you have dumb metrics, you're going to get silly results.

The numbers change little when one uses total rather than per capita revenue, and home-video sales are falling as well.

Oh come on. Home video wouldn't even exist if Hollywood had its way and banned the VCR 30 years ago, so I'm sorry if I find complaints about the home video market shrinking as evidence of a problem. As we saw with the VCR, new markets develop, and they seem to develop against Hollywood's own wishes -- and then become a huge revenue driver for Hollywood. The best solution, if we look historically, is to get Hollywood out of the way and just let those new models develop to save Hollywood from itself.

That in itself should be troubling to anyone who thinks the profit motive matters — with less profit, presumably, will come less creative output.

Thing is, we don't need to "presume" anything. We have data. And the data shows that more music is being created and released and monetized than ever before. And the data shows that more films are being created and released and monetized than ever before. You can presume all you want until the cows come home, but if reality says you're wrong, it's difficult to take those presumptions seriously.

As commentator Eduardo Porter noted in the New York Times, while the total number of music-album releases rose between 2005 and 2010, releases of albums that sold at least 1,000 copies — a rather low standard by which to judge whether an artist is making a significant contribution to the world of recorded music — declined about 40 percent. Of course, like Salam and Ruffini’s, Porter’s data are highly debatable — he relies on the Nielsen sales database, which excludes some independent releases and does not count sales of single songs.

It doesn't just exclude "some" independent releases. It excludes tens of thousands (potentially hundreds of thousands) of independent releases. If you just look at TuneCore and CDBaby alone, you'd realize how silly relying on SoundScan is as a proxy. And, once again, this is only looking at "recorded music" sales in isolation. The fact that fewer albums sold 1,000 copies ignores the massive explosion of new music (which just paragraphs earlier, VerBruggen "presumed" was impossible), meaning that there's a ton more competition. Furthermore, it ignores that recorded music is not the main way that many artists monetize these days, and looking at it in isolation is pretty pointless. Finally, many of those artists who sold less than 1000 albums would have made a big fat $0 under the old system, because no major label would have bothered with them and they wouldn't have had any other outlet. Aren't we all (including, most importantly, the musicians) better off in a world where a whole bunch of artists get to make something rather than nothing? But, again, the "but... but... piracy!" argument blinds VerBruggen to this reality.

The finer points of entertainment economics aside, if widespread and increasingly popular illegal behavior is costing American companies business, and possibly reducing artists’ creative output, it is first and foremost a law-enforcement problem, not an “innovation” problem. It is entirely reasonable for Hollywood to petition the government for better anti-piracy efforts, even if the industry has lobbied for bad legislation in the past.

Almost nothing in this paragraph is supported by... anything. If law enforcement doesn't work, how is this possibly a law enforcement problem? This is yet another example of someone trying to be right rather than realistic. It's a recipe for disaster, but it's the same recipe that the legacy entertainment industry has been cooking up for decades to no effect. Who would ever double down on that strategy?

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Morality, Non-Zero Sum Games, Externalities & Why Someone Profiting Off Of Your Work Isn't A Bad Thing

Mike Masnick — Thu, 1 Dec 2011 09:45:44 PST

In the discussion following my recent post about ex-RIAA boss Hilary Rosen's comments about my article highlighting all of the problems with SOPA and PIPA, Ms. Rosen was kind enough to stop by and attempt to clarify her position:

...my response was "Think analog" not as in analog policy vs digital policy but think of the real world we live in and the ethical issues we face every day. My point was that I can be pissed that the GAP doesn't have an outfit that is as stylish or fit as well as I want. And I can think that they arent serving their customer when they give me ugly clothes that dont fit well. ie: their busiess model sucks. But I don't think that gives me the right to take any of their clothes without paying just because I am an unhappy customer. That was my ONLY point. Do I think that the content industry has moved way too slowly in putting their content online? Absolutely. Do I think they could have been and should be more innovative? of course. But I also know that these are huge ships turning around in creeks and however easy the answers seem to you , they are often really hard. When people screw up their business, their sales go down. That has happened in the entertainment business. They are paying a price for their pace of change. BUT, there is also stealing. Pure old simple unethical stealing. Call it whatever you want - the march of technology - the inevitable cost of innovation, etc. To the writer or songwriter who makes their money on SALES, it is stealing. (Even if they might be thinking about making their money another way.) And while I love the dialog by for and about consumers and fans on these issues, I have no patience for big companies like Google who not only throw huge sums of money out there buying professors and economists and think tanks to kill any effort at copyright protection, they make a fortune on search advertising for those same illegal products.

So, your first sentence was right, I have long been willing to shine an unattractive searchlight at my old compatriots when they deserve it But I have no patience for the finger pointing and nastiness of the so called tech fans in this debate. Thank god I don't have to care so much anymore.

While we appreciate Rosen stopping by and joining in the discussion, the responses highlighted the myriad problems with this statement, going beyond both the tortured, nonsensical analogy (who steals something from a store that doesn't have what they want, or who steals clothes they don't like because they don't like them?) and the ridiculous "it's theft!" claims. If you want to read the full thread or discuss her specific points, I urge you to go to that thread and continue the conversation there.

The whole exchange got me thinking about some bigger issues though. Rosen's comments reminded me so much of my experiences at various recording industry events, where they pay basic lip service to things like "we have to adapt" and "we have to stop blaming customers," but then immediately flips to "but piracy must be stamped out first!" never recognizing that these two things are at odds. And what it boils down to is a mixture of a psychological issue and a confusion over economics.

First, Rosen's response, like many others, falls back on facile and inaccurate "morality" claims. This is usually a sign of a very weak structural framework to an argument. When you can't explain why, you resort to "well, it's just wrong." But, as we've explained for years, the "morality" aspect of an economic decision only comes into play when there's a decision to be made about who will be worse off. That's all morals really are about. If move x harms person y, is it "right" to do that? Folks like Rosen and many SOPA/PIPA supporters see what's happening online and it looks exactly like the previous sentence: "If downloading music harms musicians/songwriters, it's clearly not right to do that."

But that misunderstands the wider economic implications of what's happening. Let's put it another way to make this clear: If selling automobiles harms the makers of buggy whips, is it "right" to do that? I think most everyone would claim that it's fine. This is innovation in process. Thus, the simple statement, "If move x harms person y, that's immoral," seems way too simplistic. Let's expand it out further. What if, in our buggy whip hypothetical, the rise of the automobile forces the buggy whip maker to change their business model... such that they no longer make buggy whips, but steering wheels. The classical lover of buggy whips may find this upsetting -- and the buggy whip maker may complain, "but buggy whips are my product, I'm not in the steering wheel business." But the market doesn't care. In this situation, the morality question is more complex: "If move x harms person y in the short term... but opens up much greater opportunity for them to do better by accessing a much larger market, is it right?" Suddenly, the moral issue is pretty straightforward. There's no moral question at all. The market has changed, and as long as the whip maker comes along for the ride, the opportunity is there to be better off. It may be a challenge, but it's hardly a moral issue.

Rather than confront this, the people who insist this must be a moral issue, back up their claims with a secondary claim to make it seem like a moral issue: "someone else is profiting off my work, and that's unfair." In many cases, the "someone" they point to is "Google." This is mostly a correlation vs. causation error. People see that Google is massively successful, and the timing correlates well with the decline in the record labels. So they assume that Google must be "taking" money from the labels. This is quite inaccurate and shows a lack of knowledge about a variety of subjects, beyond the fact that correlation is not necessarily causation. In the thread with Rosen, I point out that the claims that Google "profits" from infringement are widely overblown. Google makes money from clicks, and infringers aren't hanging around these sites clicking on ads.

But the bigger issue is this relative morality issue of "If someone else benefits from my work without paying, that's unfair." But, again, this is way too simplistic and not reflective of reality. People benefit from the work of others for free all the time. In economics, it's known as an externality. Tragically (and potentially because of the name), people think that externalities are rare. They're not. They happen all the time. Every day, people benefit freely from the work of others without paying. As the saying goes, we all "stand on the shoulder's of giants." So much of what we value today comes from advancements in the past, which we benefit from, without paying those who created them. And yet, no one thinks this is bad.

The real question is if whether you can take it a step further and recognize that the economy is not a zero-sum game, in which one party loses when the other benefits. This is often difficult to understand, but put simply: in a zero-sum market, someone paying you $10 means I lose those $10. In such a scenario it may be reasonable to worry about someone else profiting, because it really does mean you lose. But in a non-zero sum market, with externalities, the market can expand. If every time you get paid $10, I now have the opportunity to make $100, that's clearly a better deal. But, let's make it a little more complex. In the zero sum game, every time you get $10, it's at my expense. But what if the other option in that world is that every time I raise my hand, you get $10 and I get just $1. That's still a much better deal for me to take than the one where I lose money. In this case, I might not make as much as you -- even if I'm doing the work, but is that morally wrong? We're both better off under this scenario. You're better off because you make more money. And I'm better off because I'm making more money... just not as much as you.

But, for whatever reason -- psychology, economic ignorance, etc, -- many people react poorly to this, claiming that it's a moral problem. I, personally, have trouble seeing how a situation in which everyone is better off results in any sort of moral dilemma, since we never reach that crucial moral question of "who gets harmed?" Because no one has to get harmed. But here's the kicker: no one has to get harmed if they adapt. And it's the adaption part that freaks people out and makes them want to cling to something clearer, even if it makes them worse off in the long run.

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Parents Television Council Accused Of Dumping Petitions, Just Focused On Cash

Mike Masnick — Thu, 28 Oct 2010 06:00:34 PDT

We've written a few times about the Parents Television Council, the infamous nonprofit group that sends out alerts any time anything it considers indecent is aired on TV or shows up elsewhere that the PTC doesn't like. Back when Kevin Martin was at the FCC, the PTC actually appeared to have some influence, but since then, its influence has clearly dwindled quite a bit. And with a court recently rejecting the FCC's attempts at fining those who upset the PTC as unconstitutional, the organization is apparently struggling with being relevant. I'd also guess that a growing number of people think that PTC's fear mongering is totally ridiculous and unfounded. For example, its latest grandstanding is about the CBS TV show $#*! My Dad Says. I would guess that most people simply don't care. And that's reflected in the fact that donations are way down to the PTC, and while the group claims 1.3 million members, only about 12,000 people seem to actually be active.

However, the NY Times recently had an article that suggests things are even more screwed up for the PTC than what was already known. It includes accusations from a whistleblower who worked at the PTC that the organization would ignore petitions that were sent in, just taking donations and not doing anything with the material. To understand what apparently happened, you need to understand how the PTC works. It generally sends out hyped up FUD-filled "petitions" that it asks people to sign, with promises that the PTC will pass them on to the FCC or whoever else. Except, the accusations claim that the PTC would take the returned envelopes, take out the cash, but then never pass them on to the FCC.

For a group that tries to present itself as being super ethical, taking money and failing to live up to what you promised to do in exchange for the money seems pretty unethical.

The group's response to this seems to be to attack the whistleblower, trying to turn his request for severance after he left the organization into a claim that he was trying to extort money from them. Unfortunately for the PTC, after the LAPD investigated the accusations of extortion, it found that the guy did not commit extortion. Rather than admitting that, it seems that any time anyone brings up these questions, the PTC goes right back to accusing the guy of extortion. At some point, you'd have to think that if the PTC continues to make such charges, the guy might actually have a decent defamation claim against them....

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Why Debates Over Copyright Get Bogged Down: Conflating Use With Payment

Mike Masnick — Fri, 20 Aug 2010 19:39:00 PDT

A few weeks back, we covered the "debate" that composer Jason Robert Brown had with a young fan of his, concerning the reasonableness of sharing digital copies of his sheet music online. For some reason, Brown keeps appearing in the press over this issue, which is a bit unfortunate, as there are plenty of folks who understand the issues at a deeper, more nuanced level than he does, and could do a better job presenting his case. However, the latest appearance of the story was at NPR. There's really not much new there, as it rehashes the basics that you're probably already familiar with.

However, what I did find interesting, was that the NPR piece mentioned an email that Alex Feerst, from Stanford Law School, sent Brown, suggesting that Brown was mistaken about some of his arguments. Brown got permission to publish the email a few weeks ago (though I just found out about it via the NPR story), and it's well worth reading. Much of it will sound familiar to regular Techdirt readers, as it covers much of the same ground, such as pointing out that copyright is designed to promote the progress, not to protect an artist's moral rights. It also does a nice job pointing out how copyright is regularly abused by industries trying to hold onto an obsolete business model, and that we shouldn't confuse promoting the progress with propping up obsolete business models or middlemen. As I said, the whole thing is well worth reading.

One part, early in the email, stood out to me, because it helped crystallize why so many of these discussions about copyright break down, which is that defenders of today's copyright system often conflate two very separate issues, which makes it difficult to move the debate forward: that is, they inherently link together the "this is how I get paid" part with the idea that "this is my right." As Feerst eloquently explains:

In your email, you shift from this idea, the zero-sumness of a physical object, to the broader point that you deserve to be paid for your work (right around where you say "The way I support myself and my family. . ."). But these are two separate points, one correct and one not, that you have run together -- (1) songs are like objects, when they are taken by one person, another person is deprived of their use. This is not accurate -- you may have been deprived of money, but not use. You can keep playing your song. (2) You deserve to get paid for your work. I agree with this completely. But your story conflates using the song and paying you for your work. They are not the same thing. It's not hard to imagine a world in which these are separate -- e.g., you get a generous monthly stipend that you are happy with from a patron on the condition that anyone can play your music, trade your sheet music, etc.

These two issues -- payment and ownership/control of copies should be conceptually separated. They are connected under our current system, but they are not naturally or necessarily connected. We can unfasten them and toggle them separately to see what happens. If we could imagine other ways for you to get paid for your work (maybe we can't, but assume for argument's sake we can) as an artist, then whether or not people "take" your song is beside the point. You only want to stop people from taking things because you need to get paid. If you got an acceptable income from your work, you would probably not care about who plays or doesn't play your song. This is because, unlike a screwdriver, it is not bound by physical world zero-sumness. In fact, you'd probably prefer such a system because you'd get paid and at the same time a greater number of people would hear your song. I think your teen correspondent mentioned a similar point.

This sort of thing comes up, quite frequently, in statements from people along the lines of "this is how I make my living," or "I have a right to be paid," both of which implicitly make this conflation error. Copyright grants you a right to exclude, not a right to get paid -- and there is no guarantee that "how you make your living" must always stay the same. At one point, most people made their living farming. Now they don't. The world changes, and people change how they make their living. So I think it really is important, when people make these arguments, to point out how conflating those two issues is a major flaw.

Further on this point, reading the comments on Brown's post, a lot of people take offense at one of the comments Feerst states, specifically:

So, although it may sound odd, it is not necessarily your right to get every possible penny from your work. Rather, our system is designed that you get enough to create, which promotes progress. But money that does not go toward promoting progress is not an entitlement.

I think that many people are misunderstanding what Feerst is actually stating here. It is not that artists should only get "just enough" money and then everything else must be free. Instead, he is arguing (quite correctly, from a Constitutional standpoint) that copyright is only supposed to help you get to that point. That is the very basis of copyright. But, creators are free to make use of other business models to make more money beyond that. The problem here comes in where too many seem to think that the only way to make money is to rely on copyright.

As such, it often feels like copyright has become a crutch. Because content creators use it to earn some part of their living, they start relying on it for all of their earnings, and fail to flex their "creative business models" muscle and let those atrophy, as they increasingly rely on the gov't granted monopoly privilege of copyright to act as a de facto business model.

Unfortunately, Brown's responses to Feerst's carefully argued points suggest he does not actually understand these points. He goes back to "but this is how I feed my family" multiple times, even in defending copyright lasting well past death. What he ignores, is that if he were working a 9-to-5 job as a banker or a construction worker, if he died, his family does not get to keep collecting his salary. Now, it is entirely possible to make an argument that content creators deserve special treatment that keeps their estates making their money after they die (a belief I do not agree with). However, Brown doesn't even try to make that argument. He just says:

"I've got bills to pay and I don't pay them by working at a hedge fund. If I were to die tomorrow, the lifestyle that I have built up for my family would be severely endangered, but at least the continuing royalties from the performances of my shows might pay for my childrens' college educations."

Yes, but if you did work at a hedge fund, well, then your family wouldn't continue to get your salary. That's the point that Feerst is making, and Brown totally ignores it with an incredible sense of entitlement that for some reason, because this is how he feeds his family, it has to continue.

Brown also brushes off Feerst's point about how Brown's own musical talent and creations are built off of "raw materials" that he "received" from others for which he does not pay royalties. Brown explains this away by pretending that those "raw materials" are "abandoned in the street," so it was okay for him to take them without paying. Yet, later on, he complains about the idea that anyone could ever use his raw materials for their own works without paying. It's quite a double standard.

Either way, Feerst's contribution here is definitely a good one, in highlighting that conflation of "getting paid," vs. "use" -- and pointing out that the two may be connected, but often are not, and certainly do not need to be connected.

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FT Claims Paywalls Are Morally Necessary... And Then Shows How Immoral The FT Is

Mike Masnick — Thu, 5 Aug 2010 11:11:22 PDT

A few folks have sent over the thorough debunking, done by Boing Boing's Rob Beschizza, of the CEO of the Financial Times, John Ridding's recent interview about paywalls (amusingly done with staunchly paywall-free The Guardian). Most of Beschizza's debunking focuses on Ridding's slapping around the old "information wants to be free" strawman, which isn't the argument anyone is making. Yes, Stewart Brand said it a long time ago as a part of a much longer and more complex concept, but there are serious economic and business model discussions held by lots of people that think paywalls are a bad idea, and none of it has anything to do with "Information wants to be free."

But what's even more ridiculous is Ridding's claim that paywalls are morally necessary. Seriously:

There is a moral dimension too, as he makes clear by drawing on the views of Henry Luce, a co-founder of Time magazine.

Luce, quoted in a Time article by Walter Isaacson last February, could not stomach the idea of papers and magazines relying solely on advertising revenue.

He called the formula "morally abhorrent" and "economically self-defeating." A publication's primary duty was to readers rather than advertisers. The advertising-only revenue model is self-defeating, because, eventually, it weakens the bond between publication and reader.

Now, to be clear, the pronoun choices in those sentences are a little ambiguous, so it's not entirely clear if it's Ridding, Luce or Isaacson who specifically said advertising only was "morally abhorrent" and "economically self-defeating." But, either way, it does seem like all three share that general sense. There are a few problems with this, logically. First, it assumes that there are two and only two revenue streams available: advertising and subscription. That is not the case at all.

Second, if it's morally abhorrent to rely on advertising, then pretty much every major publication is morally abhorrent -- including the Financial Times, in getting a pretty good chunk of their revenue from advertising. Historically, if you look at publications, subscription revenue hasn't even covered printing and delivery costs -- meaning that subscriptions were effectively meaningless in terms of actually mattering to a paper's bottom line.

But, the biggest point that disproves Ridding is given by Ridding himself (and highlighted by Beschizza). Apparently, in an interview just a few months ago, Ridding talked up how the subscriptions were useful in getting advertisers to pay more:

"If you have an audience that is paying for your journalism they are engaged and that is an important message for advertisers."

Remember, this is the guy who was just saying that if a publications primary duty was to advertisers rather than readers, it was morally abhorrent. But, even here he admits that the subscriptions are driven by... advertisers. If this was really about getting the influence of advertisers away from newspapers, why is he playing up the increased ad revenue due to the paywall?

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Composer Jason Robert Brown Still Standing By His Position That Kids Sharing His Music Are Immoral

Mike Masnick — Fri, 16 Jul 2010 10:34:58 PDT

Composer Jason Robert Brown got some attention in recent weeks for his blog post debating with a teenager over the morality of trading digital copies of his sheet music online. That story continued with a David Pogue blog post at the NY Times which quoted an accomplished musician and professor who defended the teen. And while Brown had said that he was done talking about this subject, it appears he can't resist. He's taken to the (digital) pages of the NY Times himself to restart his argument and to complain about the way people have treated him in this debate.

As we noted in our original post on the subject, I thought it was good that there was a civil discussion on the topic, and I know that these discussions can get rowdy and angry at times. But I do find it a bit silly when anyone suggests that it's all one side who are obnoxious in their treatment of those on the other side. It's the internet. People are going to make short and angry responses no matter what you say. People are quite frequently obnoxious or threatening to me, but I hardly leap to the conclusion that the majority of people who disagree with me are somehow hostile or even make a big deal of it. It's the internet. Get used to it and move on.

For example, I find that Brown's dismissal of certain arguments to be every bit as "hostile and haughty" as what he accuses those from "the Slashdot World" of making:

In the Slashdot world, the idea that creators are losing something in the free and unauthorized exchange of their creative capital is somehow controversial. People who like to quote Stewart Brand's mantra "Information wants to be free" insist that the minute I express a creative idea in any fixed form, it becomes the property of the world.

First of all, it seems like the only people who still use the (mis)-quote "information wants to be free" any more are people knocking down a strawman. The quote is meaningless. If people use it, they're using it as shorthand for a much more nuanced argument, but rather than respond to that argument, it seems that copyright system defenders use it to mock those who have more serious arguments by brushing them off as the "information wants to be free" crowd. And the argument is not that once you express a creative idea in any form it becomes "the property of the world," but that you physically cannot limit what happens to it. That's just how it is. That doesn't mean it becomes property of the world. After all, ideas are not property. But it does mean that because people can copy it at no cost, they will do so.

The question is, what are you going to do about it? Are you going to argue and whine and stomp your feet as the tide comes in... or are you going to adapt and adjust your business model?

The blueprints for your house should be free. Movies should be free. The DSM-IV should be free, regardless of the expense required to create these things.

This is really frustrating because people accuse me of making this kind of statement all the time. It's not should, it's will. "Should" is a moral argument. "Will" is a predictive economic explanation. People aren't saying the information "should" be anything. They're saying it will be -- or, more likely -- already is. Again, the question is what do you do about it? Falsely claiming people are giving it moral value by saying "should" twists an economic/business model debate into a moral one.

I don't think I'm guilty of simplifying their side of the argument; they insist on simplicity -- the preachers of the "new ethics" imply that anything short of a tangible good or service should have a value of precisely zero, for the simple reason that the Internet makes it cheap and easy to disseminate intellectual property, regardless of the laws of copyright or traditional moral custom.

You are guilty of simplifying the other side, and many of us do not insist on simplicity at all. We insist on accuracy -- and it is inaccurate to claim many of us are saying "should" when we are not. That an accurate explanation of basic economic (not moral) forces may seem simple does not mean we wish to simplify the argument.

Following on that logic, if it were as simple to reproduce a chicken online as it is to reproduce a copy of my song, everyone could just get free chicken whenever they wanted, provided they had enough ink in their chicken printer or whatever.

Yes, that logic sounds perfectly sound. Is he really suggesting that an invention that could solve world hunger is a bad thing?

These same people insist that I should be happy to give my music away because it's free advertising, and that word of mouth will spur more performances of my work.

The people saying that are pointing out that there are more factors at work here than just what Jason Robert Brown has said originally. They're not just saying that it will spur more performances. They're saying that the issue is more complex than you're making it out to be, and there are other business model options and that, perhaps, it would help to explore them, rather than to mock them.

I don't doubt, however, that if these people could figure out how to get to my performances for free, they would do that too.

Indeed. If such things were available infinitely, than that would be the case. What Jason Robert Brown is ignoring is that as one thing becomes infinitely available, it always creates additional scarcities that he can charge for.

We can all rationalize stealing in any number of ways, but taking something that doesn't belong to you is theft, and I no longer have any patience with those who want to justify (or worse, ennoble) the taking of what is rightfully mine.

Infringement is totally different than stealing. It is making a copy of something. You have not lost anything. This point has been made so many times it's silly that it needs to keep being made. And if he no longer has the patience to "justify" his (wrong) argument, why does he keep writing about it?

It seems reasonable to me that if you want that information, I should be able to charge you for it.

Fair enough. It seems reasonable to me that if you want to read this page, you should have to pay me $100,000 to do so. What, you don't want to do that? Then my business model fails. But that's my problem, not those who chose to find alternative markets for my content.

The fact that you can get that information for free, thanks to some naive teenager or Crusading Copyright Killer, does not diminish my entitlement (both legal and moral) to be paid for providing it.

Actually it does. And that is the point. Markets adapt based on supply and demand. When a product becomes infinitely available, supply goes way up, and the price goes down. Your sense of entitlement to a business model that no longer fits the market is what people are complaining about. They're not upset that you want to get paid. They just are letting you know that you've chosen a bad way to get paid, and they're going to get your works from alternative market places.

It's very easy for me to make that material available if I wanted people to have it, but it is enormously frustrating to have that control wrested from me by the simple act of someone scanning a copy of sheet music and sending it freely out into the world.

The crux of the problem: Jason Robert Brown wants control. But copyright was never about "control." Markets change. Old providers lose control. Don't blame everyone else. Learn to adapt.

I write for the theater. It's not a particularly reliable or consistent way to make a living, but I have found my way to a comfortable middle-class lifestyle by offering my work for sale in ways ancillary to public performances. It no longer makes sense to produce and sell CDs of my work -- the expense of producing those recordings far exceeds the income earned in the current climate. Now sheet music is equally endangered.

So you've adapted before, and you can adapt again. Welcome to a dynamic world.

It seems legitimate to wonder if there isn't some way to take back those income streams, if not through legal enforcement measures, than at least through changing the terms of the debate from "Why people should be allowed to steal all the content they want" to "Why creators are entitled to payment for the work they do."

It's legitimate to wonder, but it's still asking the wrong question. You don't "take back" income streams that no longer make sense in a market. You adjust and adapt -- just like many other artists are doing -- and move forward. Instead, Jason Robert Brown is looking backward wistfully at a world that no longer exists.

And, again, no one is saying that creators shouldn't get paid or shouldn't make a living. They're just saying that it's your responsibility to find the right business model, and to adapt when the market changes. That's not "amazing." It's basic economics.

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Teenager And Composer Argue Over File Sharing

Mike Masnick — Tue, 6 Jul 2010 04:47:46 PDT

Early last week, reader dcm sent over an interesting blog post by Jason Robert Brown, a somewhat well known theatrical composer where he posted a debate he had with a teenager concerning file sharing. Since then, it appears the story also appeared on Reddit and some other sites, and now everyone is submitting it to me (that'll teach me not to leave interesting stories to write up over the long weekend...). Anyway, the basics of the story aren't too surprising: Brown is upset that the girl isn't paying him, the girl tries to explain that she wouldn't buy his work otherwise (she doesn't have the means), but is trying to promote his work because she likes it and thinks more should know about it. And, from those two very different viewpoints, nothing approaching agreement is ever reached.

It's definitely an interesting discussion, in that both sides mostly remain friendly throughout the debate. Brown starts off with a simple request to various users of some file sharing system to please stop sharing his works because it's "totally not cool" with him. Thankfully, he doesn't threaten anyone or break out any legalistic cease-and-desist type language. There is some back and forth at the beginning where the girl doesn't believe that "THE" Jason Robert Brown is really emailing her, but then the conversation gets a bit more interesting. She starts out by asking him a simple question about why he's spending so much time asking everyone to take down his scores:

I'd like to ask you a question. Why are you doing this? I just searched you on this site and all of the stuff that people have of yours up there say that it's "Not for Trade Per Composer's Request." Did you think about the aspiring actors and actresses who really need some good sheet music? If you're really who you claim to be, then I assume you know that Parade, Last Five Years, 13 The Musical, etc. are all genius pieces of work and that a lot of people who would love to have that sheet music can't afford it. Thus the term "starving artist." Performers really need quick and easy ways to attain good sheet music and you're stopping a lot of people from getting what they need. It matters a great deal to them that they can get it for free. Why does it matter so much to you that they don't?

Brown takes a while to actually get around to responding to the questions (there are some emails in between), but he finally says:

I should think the answer is obvious: I think it's annoying and obnoxious that people think they're entitled to get the sheet music to my songs for free, and I'd like to make those people (you, for example) conscious of the immorality, illegality, and unfairness of their behavior.

The teenager, Eleanor (sometimes referred to as Brenna, but that's not worth discussing), points out that many artists have no real means of obtaining his works, but by being able to download the scores for free and use them, they're making many more people aware of his works. She presents a hypothetical that describes the value of word of mouth marketing for those who might not be aware of his works, even highlighting how many of those people will likely end up making transactions that help his bottom line. He, not surprisingly, is not buying it:

That same scenario could take place exactly the same way if you paid for the music. And that's how that scenario is SUPPOSED to take place. You assume that because a good thing comes from an illegal act, it's therefore mitigated. That's nonsense. I'm glad people want to sing my songs, and I'm glad that when other people hear them, they enjoy them -- that doesn't mean I surrender my right to get paid for providing the sheet music.

This is a point that is raised quite often, but misses the point, which Eleanor is quick to point out: that the scenario won't happen, because many up-and-coming artists will simply shift to music from composers who do allow it to be traded for free:

You think the same scenario could have taken place exactly the same way? Funny. Most of the teenagers I have met who are into theatre would do the free song before they would do the one for $3.99 unless they had a really good reason. It could theoretically take place the same way. The question is would it? And the answer is probably not. I never said that it was an amazing thing happening and I never said that it doesn't start with what I'm sure seems to you as a bad thing. I "assume that because a good thing comes from an illegal act, it's therefore mitigated"? .... Yes. I assume that because something that good comes from something so insignificantly negative, it's therefore mitigated.

Brown comes back with a few comments about how it's not worth arguing with a teenager who thinks anyone who tries to correct her is "the enemy," but then comes up with three "stories" of his own about why file sharing is wrong -- even though none of them actually show that. Instead, there are two that are about borrowing a physical item, and one about fair use. What's most amusing here, however, is that Brown seems to have no problem with the kind of fair use where you rip a CD, but doesn't seem to think that Eleanor's use of his music could possibly be fair use. Then he concludes with four paragraphs where he tries to convince her she's wrong and tells her she should take his works out of the library instead:

Now you're frustrated because even if you wanted to do the right thing, the ethical and legal thing, you still need a credit card to buy the sheet music and that isn't going to happen. Listen, Eleanor, I'm frustrated on your behalf. It really sucks to be a teenager. I'm not being sarcastic or ironic, I really get it. I wrote a whole show about it. But being able to steal something doesn't mean you should. If your parents really won't pony up the four bucks to buy a copy of the sheet music, then you can ask them to take you to the library and you can take out all the music you want, free, and pick the song you want to use for an audition or a talent show, and you can keep borrowing the book from the library until you're done with it or until the library demands it back. My song may not be in your library -- you could ask them to get it from another library, through an interlibrary loan (this is common, standard library practice), but if you're in a time crunch, that's not practical -- so you may have to just pick another song. It may not be the perfect song, but if you're a talented girl, it won't matter all that much. As long as it shows off what you can do and who you are, it will suffice because you are a teenager and the people who you are auditioning for will cut you slack on that account.

That's the end of my jeremiad, and I'd be surprised if it persuaded you in any real way, but it is the truth and it is your responsibility as a citizen, as a member of the theatrical community, and as a considerate human being to pay attention to the laws, ethics and customs that make it possible for you to do the thing you love. I'm very much impressed by how passionately you've stood your ground, and how articulate you've been in doing so, and I can't tell you how excited I am that you didn't misspell anything, not once in this entire exchange. (Well, you wrote "you're" when you meant "your" once, but I'll let it go.) But being able to argue a point doesn't make it right -- lots of lawyers lose cases all the time.

I'm sorry if you still think I'm a jerk, but what I'm talking about here is not "insignificant." The entire record business is in free-fall because people no longer feel the moral responsibility to buy music; they just download it for free from the Internet, from YouTube, from their friends. When I make a cast album or a CD of my own, I do it knowing that it will never earn its money back, that I'm essentially throwing that money away so that I can put those songs out in the world. That shouldn't be the case, and I suspect in your heart you believe that too. All of us who write music for the theater are very much concerned that the sheet music business will eventually go the same way as the record business. I'm doing my little part to keep that from happening.

If you want me to talk to your parents and ask them to buy you the sheet music, just have them write me an email. You know how to find me.

Not surprisingly, I side more with Eleanor than with Brown in this debate, but I do think it's a good thing that the two sides engaged in a civil discussion on this topic, and think it's a bit unfortunate, as Brown notes in his "update" that he's hearing from "hostile" men who are trying to "educate" him on this subject. I would bet, of course, that many of the people trying to educate Brown are not, actually, hostile at all, but I'm sure some of them certainly are. And it's unfortunate, then, that he automatically lumps all such responses into the "hostile" camp.

The simple fact of the matter is that Brown is, in fact, wrong on many of his key points, though it's not surprising that he is. For example, his claims that "the entire record business is in free-fall because people no longer feel the moral responsibility to buy music," is quite an incorrect statement. First of all, since when has there ever been a "moral responsibility to buy music?" There hasn't been. And, of course, while certain major record labels may see their business in free-fall, the actual music business is doing incredibly well -- in fact, it's having quite a renaissance in terms of the number of albums released, and the amount of overall money that people are spending on it. It's just that they're not spending it on recordings (or sheet music) directly.

That said, Brown has made his living this way for a while, so you can see why he'd be upset that the old way of making money has been disappearing, but I doubt that a significant portion of his earnings came from teenage girls buying his sheet music in order to perform it at talent shows. In fact, since most of his work is for the theater, there are numerous business models available to him that have little, if nothing, to do with direct recordings, and for which file sharing -- like the kind Eleanor cites -- could help attract more revenue if he'd learn to adapt, rather than demand that the rest of the world adapt to him.

In the end, though, Brown did not go legalistic (even if he did go moralistic) and seemed at least willing to engage with Eleanor. I doubt he's going to change his mind any time soon, but we've seen a lot worse and a lot more obnoxious from folks who were a lot less informed. Brown strikes me as the kind of guy who, if actually given more evidence on this subject might actually come around to recognizing that, perhaps, it was he who made the wrong assumptions, rather than Eleanor, even if it might take quite some time before he realizes this.

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Is Intellectual Property Itself Unethical?

Mike Masnick — Fri, 11 Jun 2010 19:39:00 PDT

For many years I've argued that the economics of abundance is not a moral issue. This is in response to the typical moral and ethical arguments in favor of things like excessive copyright or patent law, with normative claims about how we must protect artists' or inventors' creations for moral reasons, in that it would somehow be "unfair" to have others make use of their creations or inventions. My argument, in response, has always been that the role of morality is in determining a different level of fairness, it's determining the allocation of harm. In other words, moral questions come up when there is a choice over who gets harmed. If you're in a situation where no one gets harmed, then there should be no moral question. So, in approaching an issue like intellectual property, my argument is that if you can create a solution in which the economics allow a greatly increased opportunity for everyone, then you preempt the moral question. Since everyone has a chance to be better off, if you understand the economics and apply it properly, then the only issue is one of economics -- how to best achieve that goal -- rather than morality.

However, if it's true that by doing away with the idea of intellectual property, you create greater opportunities for everyone, could you make the argument that intellectual property laws themselves are immoral or unethical in that they are actually what makes everyone worse off? Could you make the argument that by restricting the use of certain resources and restricting freedom of expression, those laws lead to unethical limitations? Put another way, if intellectual property is causing actual harm, then you could make the claim that there is a moral issue in discussing them -- in that the laws of intellectual property, by themselves, are immoral. That is, if taking away IP causes no direct harm, then there's no moral issue to discuss. But, if leaving them in place does cause harm, then that is a moral issue worth considering.

It's really not something that I had thought about, but Stephan Kinsella points us to a recent talk given by David Koepsell, who not so long ago wrote a book, Who Owns You?, all about the serious problems in patenting genes. I've actually had a few email conversations with Koepsell over the past few months, and it's worth paying attention to what he has to say. He's very deliberate and careful in his work, supporting his positions with deep levels of analysis and evidence. This talk appears to be a new area that he's taking on, trying to make the case that all intellectual property is, by its very nature, unethical: Now, I will be the first to admit that the talk itself is a bit dry at parts and rough around the edges, and at times seems to go off on tangents. But it certainly has some potential. The argument uses different language than we use here to describe some points, but they map back to the points we discuss on a regular basis pretty easily. He talks about the difference between real property and intellectual property, in that real property concepts predate the law -- predate "institutions" -- because of the brute facts of the situation. If you possess a physical good, there need not be any law saying that you are excluding others from using it. You have it. But if it's an idea or an expression, you need an institution or a law to try to exclude it from others. Effectively, he's distinguishing between what we refer to as scarce goods and infinite goods. Scarce goods, by their nature, are rivalrous and excludable. Infinite goods are not.

He also discusses that the concept of "the commons" is too simplistic, and that there are different kinds of commons. Again, there are the commons that are created through legal or institutional necessity -- such as national parks or the highway system. Without the institutions, then others would likely claim that land via possession. Keeping them as a commons is the legal attempt to avoid a "tragedy of the commons," where that property is allocated inefficiently. But, he argues, there's another type of commons as well: a commons that itself is normal that cannot be enclosed and possessed outside of the law. And that includes things like your genes, or any expression. He refers to the former as a "commons by choice," and the latter as a "commons by necessity," which is an interesting concept.

Thus, the key argument he makes is that intellectual property is an attempt to lock up the "commons by necessity," in the false belief that it is the same thing as the "commons by choice." And while he doesn't directly make this final point, what's clearly implied is this: the purpose of a commons-by-choice is to avoid the tragedy of the commons and to better allocate a scarce resource by letting everyone share it. But when we try to take a commons-by-necessity and pretend there's a tragedy of the commons when it might not exist, we actually make the allocation of resources significantly less efficient. And making a choice to limit the efficiency of a space -- such as by limiting your rights to expression or your rights to innovate or, perhaps worst of all, the rights to your own genes, you are creating harm -- and that harm is immoral.

It's definitely an argument worth considering.

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Peeling The Layers Off 'Piracy'

Mike Masnick — Wed, 17 Mar 2010 21:11:48 PDT

We often see critics or industry folks make absolute statements like, "copyright infringement is stealing and it's bad." Of course, this is wrong for any number of reasons, but rather than jumping all the way to why such statements are obviously wrong and misleading, why not peel back that onion one layer at a time. Ross Pruden points us to an interesting blog post by Luci Temple, where she begins the process of questioning the assumptions around "piracy is bad." It starts out with that premise (it's bad!) and then starts asking questions:

Purchaser: This person has already paid for a legal copy of the film. Now, the Purchaser might want to do a number of things that are technically in breach of copyright:

a) Burn a copy of the dvd for personal use, so that their original copy won't get scratched.
b) Create a digital copy for use on a portable MP4 player, media gate, or computer.
c) Lend the burned dvd to a friend for their personal use (their friend being a Previewer).
d) Lend the digital copy to a friend for personal use (which actually involves making another digital copy).

All these things are technically acts of "piracy," however, are they all morally "wrong"? Is copyright law applicable to the mores of the digital age, or does it need to be updated?

She goes on to discuss "lending" to a friend, noting how it's fine to lend a physical copy, but why not a digital copy? The thing is, the more you play this game, the more you'll realize how many situations that are automatically lumped in with what's considered "bad," almost certainly aren't "bad" in anyway at all.

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Is Morality Even A Question In Copyright?

Mike Masnick — Fri, 16 Oct 2009 19:33:00 PDT

I've explained in the past why I think it doesn't make much sense to include a moral argument in discussing things like copyright law. If you can structure things such that everyone is better off, then morality shouldn't even come into play at all. My focus, then, is on setting up systems that do tend to benefit everyone, so there isn't a moral question at all. If even the content creators are better off under certain systems, then where is the moral question? The problem, of course, is that it's often not the actual content creators whose livelihoods are at stake. Instead, it's various middlemen who have worked themselves into a certain position. But arguing that they need to prop up their own obsolete business model isn't very interesting, so they tend to play the morality card, claiming that a system where content is given away for free has some sort of negative moral component. That's hogwash.

William Patry recently did a series of posts over at The Volokh Conspiracy, and addressed this issue as well, concerning copyrights and morality, where he noted:

Morality is used in the Copyright Wars as a way to cover up the inability to justify expansion of rights on economic grounds.

Indeed. Since copyright is intended as an economic right (as detailed and cited in Patry's post), the arguments over copyright need to focus on the economic issues. And a properly calibrated system is one where there's the greatest overall economic good and everyone has the greatest opportunity to benefit. At that point, where's the morality question at all? The answer is that there isn't one. Claiming morality in an economics discussion on copyright is a crutch used by those who can't support their position. There is no moral issue at all.

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Latest Unsubstantiated Claim: Twitter Makes You Immoral

Mike Masnick — Tue, 14 Apr 2009 10:59:00 PDT

What is it with these bizarre exaggerated claims about the "harms" associated with modern social networking tools? There was just a totally exaggerated report claiming that social networking was harmful to your health, but when you looked at the details, it didn't actually say that at all. The latest, is the claim that new research says that Twitter can make you "immoral." Really? Well, if you actually read the details that doesn't seem to be what the report says at all. Instead, it seems to note that if you only interact with people through short bursts of information, it may take you longer to recognize the emotional impact of what's being said because it's harder to spend the time to reflect. It's difficult to see how that finding is really all that new or surprising. But it says nothing about Twitter somehow turning moral people into immoral people, as the original story suggests.

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Free Market Capitalism, Moral Character And Doing Good All Work Hand In Hand

Mike Masnick — Wed, 31 Dec 2008 11:04:24 PST

I've never quite understood the complaints of some that free market capitalism somehow goes against morality or good deeds. As we've discussed in the past, moral questions shouldn't even come up at all in scenarios where everyone is better off. Moral questions only arise in scenarios where some are worse off and some are better off, and a decision needs to be made about who is worse off and who is better off. The nice thing about free market capitalism is that it tends to increase the overall pie, allowing a much larger number of people to be better off, and tends to do so in a more efficient manner than other systems.

Yet, then we have odd stories about people complaining about for-profit charitable organizations even when those charitable organization end up raising significantly more money for charities than their non-profit "competitors." There's nothing inherently evil about profit -- and if you look at much of the important charitable giving out there today, it was created because of profit. The Bill and Melinda Gates Foundation -- which is based on this very idea of doing good through capitalism is built off of the vast profits earned by Gates and Warren Buffet. Google's charitable wing, Google.org, is also designed as a for-profit enterprise, recognizing that if it can make everyone better off while making itself better off, there's no moral dilemma at all.

But, still, there are some who suddenly question whether or not the free market takes away a moral backbone -- but the only situations in which that would clearly be true are in cases of either outright fraud, or where you're dealing with a zero-sum game. In an economy that has the potential for growth, then one should encourage more growth to increase opportunities for everyone. There may be additional moral questions later concerning overall allocation, but increasing the wider opportunity, which is exactly what free market capitalism does, seems ridiculous to question.

In the end, it seems that some have this odd guilt associated with money -- as if because one person has made a lot of it that it somehow takes away from others. That's simply not true. Adam Smith, who wrote the original book on free market capitalism, The Wealth of Nations, only did so after first writing a book on morality, called The Theory of Moral Sentiment. Free market economics and morality go hand in hand. To think that they're mutually exclusive shows both a misunderstanding of morality and economics.

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UK Culture Secretary Pushes Copyright Extension With Questionable Logic

Mike Masnick — Thu, 11 Dec 2008 13:48:00 PST

SteveD points us to the full text of a speech given by UK Cultural Secretary Andy Burnham, pushing for copyright extension on performance rights. The speech itself is interesting, in that Burnham at least pays some tribute to other ideas, even quoting John Perry Barlow on the nature of information. However, there are still plenty of troublesome (or downright incorrect) statements in the speech. Even though he kicks it off by saying that the government generally should stay out of the music business, he then goes on to mostly ignore that:

But, the truth is, government intervention in the music business does not have a glorious history. To paraphrase one of our greats, mixing pop and politics is not a straightforward business and, indeed, can be a bit embarrassing for all concerned.

The British music business has been a major success story with government at arm's length, or further - in something of a state of mutual distrust.

Over the second half of the last century the industry grew into one of real economic and cultural significance -- and its output for many defined us internationally -- yet without significant government intervention or political help.

But I'm going to make the case this morning that necessity means that the old order of things needs to change.

You would think, having admitted that when the industry has been successful without intervention and admitting that when the gov't does get involved, things tend to get messed up, he'd have a pretty rock solid reason for saying it's time to change. But he doesn't. His focus seems to be on the fact that musicians need to get paid for every song listened to -- which is simply not true. That may be the way things worked in the past (actually, that's not true -- because most record labels never handed that money over to musicians, but...), but plenty of musicians have figured out other ways of getting paid. Burnham seems to ignore all that, and posits the fallacy that if musicians don't get paid from each use of a recorded song, they don't get paid at all.

While he talks about new and innovative business models that can come about due to the internet, he then makes the mistake that all music industry business models must be based on copyright:

Copyright underpins the music business -- and all our creative industries -- and the right response when it's put under pressure is not to abandon a system as outdated, but to make it work better.

And then he goes for the "moral" angle, which makes very little sense:

There is a moral case for performers benefiting from their work throughout their entire lifetime.

There are numerous problems with this sentence. First of all, no one has ever said that performers don't benefit from their work throughout their lifetimes, even if they're not paid for every single use. But they should be the ones who set up how they benefit -- not the government. If I performed on a hit song in the 60s, there are plenty of ways to benefit: such as by convincing others to hire me by noting "Hey, look, I played the guitar on this number one hit from 1968..." or whatever.

But, Burnham is making a totally fallacious argument: that if you're not getting paid directly and repeatedly for the work, then there's some sort of moral code broken. On that, I think many people would disagree. Most folks get paid for their work once. They don't continue to get paid directly for it throughout their lifetimes. They're expected to keep working, and to save money so that eventually they can retire. Why should things be any different for performers?

And, the worst part is that Burnham leaves out the truly "moral" question of copyright extension: that it's taking content away from the public domain. The musicians who recorded performances fifty years ago entered into a deal with the public -- the public that Burnham is supposed to be representing, though he seems to think he represents the artists. They would perform the music and retain exclusive rights over it for 50 years. Then it goes into the public domain. To retroactively and unilaterally change that deal is completely unfair to everyone. It's saying that a deal that was entered into fifty years ago can be ignored and changed to benefit a single party against every other person. How is that possibly moral?

There's a lot more in the speech that is equally troubling, but it's just repeating the same old talking points. The speech also ignores the research that has shown that copyright extension won't actually give very much to the musicians, but will dump millions into the coffers of the big record labels. It's not surprising, because we've heard this before, but it's a speech that ignores reality and paints a fantasy picture of both what's happening in the industry and the entire purpose of copyright law.

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The Reality Facing Those Who Rely On The Copyright Crutch

Mike Masnick — Fri, 21 Dec 2007 16:42:00 PST

Whenever I write things like the post yesterday about the fact that too many people are relying on copyright as a crutch that allows them to avoid putting any effort into more innovative business models, people accuse me of being some sort of "idealist" who is not in touch with the real world. That always strikes me as a funny thing to say, because my discussions on copyright have nothing to do with idealism -- but are simply based on the reality of what's happening in copyright. If you want further evidence of that, just take a look at David Pogue's latest column where he discovers that college kids don't view this as a moral issue at all. They just don't see why anyone would think it's "wrong" to copy content. No education campaign, no legal campaign, no change in laws is going to change that. That is the reality anyone who relies on copyright is going to face in the near future, if they aren't facing it already. So, given that reality, why not look into business models that embrace it, rather than pretending we live in an idealistic world where everyone respects the artificial barriers of copyright? Is it really so idealistic to try to build business models based on reality?

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