One Small Exception To Defend Piracy

Ramblings

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.