One Small Exception To Defend Piracy

from the orphan-works dept

Just a few hours ago, I posted something about how we never defend “piracy” in any form, but rather stand behind the positions we take because we believe it makes good business sense for content providers not to focus on “piracy,” but to provide something better that has value to consumers, and look for ways to use the so-called piracy to the producers’ advantage as a promotional vehicle. However, I need to make a slight correction. There is one area where it does make sense to defend a form of “piracy,” and the law should be changed to reflect it. Digg points us to a Legal Times article (that is tragically only found in pdf format) that makes the case for allowing unauthorized copying of orphan works (warning again: pdf file).

The argument is that if someone wants a copy of a certain creative work, and there is no legitimate commercial avenue for them to do so, it should be perfectly reasonable for the person to resort to some form of unauthorized copying. As the article notes, for the vast, vast majority of creative works, any monetary value will get squeezed out of them in the first few years. After which, it simply doesn’t pay to keep those offerings on the market (outside of certain “long tail” situations), and so they go “out of print.” However, thanks to the efforts of a few big content owners, such as Disney, all of that content remains protected indefinitely. There’s almost no way to then argue that piracy after that point represents any kind of economic loss to the creator — since nothing is on the market. Furthermore, as the article notes, the point of copyright law is much more about putting in place the framework to make sure society benefits from increased content output, rather than making sure the creator benefits economically. Thus, unauthorized copying in these cases represent a societal benefit without a real economic downside — which seems difficult to argue with. That won’t stop some people, though. As we’ve noted in the past, there are still some folks who are arguing against such changes to the law, claiming it will destroy copyright law.

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Comments on “One Small Exception To Defend Piracy”

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Lucas says:

not all IP can co-live with piracy

the recording and film industries cannot beat the piracy because unlike software there is no way to lock the content You can lock a software program so it is very hard to copy but you simply cannot lock sound and visual information that is ment for ears and eyes because one can always copy the final output by using simple sound-recorder or video-cam

MrPaladin says:


If you wanna look into Copyright, try looking at folks who are copyrighting human Gene strands, reserchers on the genes either have to pay thru the nose or halt reserch into cures…

as far as music and movies and crap… if those people wanna keep paying for the copyright then so be it, they made it they can keep it protected…

and as a cunsumer you can choose not to buy…

yitz (user link) says:

laws would be easily circumvented

if you succeeded in passing legislation such as you suggest. It could be circumvented by companies like disney. example:

What if disney offers content they don’t want people to have access to in superbly low quality for ridiculously high prices. Now there is commercial loss involved, but no one would ever pay that much for something so terrifically bad so the result is the same as it is now. In the meantime you have just wasted a lot of money lobbying congress to pass a useless law. Other ways are super-drm-able ways. What if disney offered archived content only in a pay-a-whole-lot-per-view model, it would accomplish the same thing. Piracy would, by your logic, still be illegal in this case.

I say big media should raise all their prices by 1000% and then actively pursue pirates, sueing them for their losses. This would net them more money — at least according to their business model. I think it would do a lot of good for the rest of us bringing on the usermedia revolution sooner.

Elif Tymes says:

Re: Re: Re:

OFF Topic: Or use Foxit. Simply the best Windows PDF viewer I’ve ran into, second only to Mac’s Preview.

Instant load of PDFs? heck Ya!

ON Topic: From a legality standpoint, no matter if the content is available commercially or not, the copyright owner can still go after you for duplicating it’s content. It’ll be harder for them to claim damages, due to no true viable commercial price point.

John (profile) says:

What about TV shows

Here’s a question: is it “right” to download TV shows off p2p sites if that show is not available commercially? Technically, this is considered “piracy”, but if the show if not making money for its creators, is this wrong?

Take the old “Police Squad!” show as an example: it’s no longer on the air, Comedy Central doesn’t show it, and there are no plans to sell it on DVD. If I want to see the show, is it right for me to download it off BitTorrent?

If it’s not right, then does the show disappear into history just because the studio won’t release it to DVD?

Anonymous Coward says:

I’m starting to think we would be better off with no copy right law of any kind and just let the market decide. They seem to cause more problems and kill more innovation than anything.

And Acrobat’s been a horrible, slow program since day one. I hate using it at all, I’m so glad google will convert pages to HTML. The PDF format sucks and it’s far slower than most others. I can’t even count of how many times I’ve had their browser helper crap error out when closing my browser. Even if you open it offline, it’s painfully slow. HTML, RTF, DOC, GIF, JPG, WRI – all those are far better formats than PDF. But then Adobe’s been trying to come up with reasons to exist since Windows 3.11. I’ll never forget that crap they had for Windows 3.11 – that adobe type manager, what a horrible pain too.

Trey says:


Yes it is slower but Anonymous Coward says the other formats are better….such as RTF,DOC etc. Not sure what he is comparing, as they are not even the same type of product. Acrobat is a wrapper. That’s it. Everything else is just candy. The competition is not RTF or DOC, its zip and rar etc.

And again, version 6 and above sucks dong on the speed, mostly because they try to check for an update when it starts, even if you turn that “feature” off.

hahahaha says:

Hate to start this one again.... but...

“Simply the best Windows PDF viewer I’ve ran into, second only to Mac’s Preview. ”

I’m sorry, but I somehow doubt anything on a Mac is putting windows to shame, for any reason at all.

I swear to god, you could leave a mac user in a room with his special little POS and a tube of lube, come back 15min later and find his cock crammed in the CD drive.

Get a life, Mac people.

Anonymous Coward says:

Re: Hate to start this one again.... but...

“Get a life, Mac people.”

i don’t get it. The poster you are replying to did not act in a zealous fashion, at all. you did.

The op did not post anything egregious or insulting or demeaning or…

I think you have some serious personal issues, and I would greatly appreciate it if you would stop trying to represent any platform at all, as having people like *you* backing windows is quite the insult to the rest of us level-headed windows users.

Anonymous Coward says:

Re: Sounds familiar...

“How much does Nintendo/Konami get from the new copies of that game these days?”

So what happens to your argument when they decide to bring back the classics with the launch of their new internet based services for their next-gen platform? Surely they have the right to charge for the rights to download those old games?

If they did offer them, how much has their prospective business been damaged by the fact that anyone who would want to play these old classics has already downloaded the emulators and the roms?

Would this action by loyal fans dtract from their ROI on the launch of such a service? I’m not asking would it hamper it enough, just would it hamper it.

Now obviously, Nintendo is going to do it anyways, becasue they still see value. But… What if they didn’t? Wouldn’t their rights, as an IP owner have been trampled by the Consumer’s “desired” rights to have that which was NOT FOR SALE?

I agree with the general notion, but I think the restrictions have to be quite a bit tighter than the proposed “if its not for sale, then its safe to steal” idea.

Joe says:

Former Adobe Employee

It pains me to see everyone picking on the acrobat product since I used to work for a 3rd party company that supported it. I always thought the app had its share of issues but for the most part having the ability to create a file and then send the one file to a pc, mac, linux, unix user and they all see the exact same thing when they opened it was cool.

Dont forget that is was Postscript that put Adobe on the map in the first place. If it was not for the ability to send vector font data through the Postscript processor we would still be printing with the same 14 fonts that came with the printer 🙂

Or worse yet, we would be held hostage by the HP PCL system.

Wow. That was way off topic. I now return you to your regular scheduling.

Anonymous Coward says:

Copyright law is fundimentaly broken and should be rolled back to what it was 50 years ago.

The intent of copyright is quite explicit: To encourage creation of art. It was not intended as a never ending cash stream to content cartels.

Take it back to 7 or 14 or maybe 20 years. If an author cant find adiquate compensation in thattime period to be motivated to create theyare either a no talent hack or insufferably greedy.

Wizard Prang (user link) says:

Re: Agreed.

The original purpose of Copyright was to protect the Public Domain from Private Interests, by limiting the ownership of creative works.

Somewhere along the line, Big Content got the idea that Copyright was there for their benefit… and so it is today.

The irony in all of this is that Disney could never have survived in the climate that they themselves have helped to create.

The tragedy is that our repesentatives can be so easily bought.

ehrichweiss says:


There IS law that says that a copyright work can be orphaned if the entity that owned it no longer a company buys a copyrighted work and then goes out of business without having transferred ownership of that work, or a sole owner dies with no family to inherit it. That work then becomes public domain. It happens a lot more than you might think.

Xzyx987X says:

Small exception?

What’s so small about it? Over 50% of works currently protected by copyright are not offered for sale, nor is there any other way to obtain them legally. I’ve always felt that if you threw the P2P community a bone like being able to trade content not availible for sale for a certain amount of time legally, it could really take the heat off piracy for content that is being sold. It would also create incentives for copyright holders to keep their content availible rather than locking it up where no one can ever reach it (especially in the case of works that become contraversial). However, this will never fly with the content holders, because from their perspective it isn’t something they would profit from. And since the content holders put a lot more money in politicians’ campaign funds that you or I, I doubt any politicians are going to make changing copyright law in this way a priority. But hey, it’s always worth a try to convince people that there are better ways to handle copyright than allowing a few select corporations complete unconditional control over the majority of all creative works.

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