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SIIA's Sequel To Don't Copy That Floppy Lies About Criminality Of Copying

from the which-is-more-unethical? dept

So here's a question? Which is more unethical? Making an unauthorized copy of a piece of software or music for personal use... or outright lying in a commercial? I'm pondering this as a bunch of folks have sent in variations on the news that the SIIA is (bizarrely) resurrecting its old discredited "Don't Copy That Floppy" educational campaign:
The original campaign is widely seen as a total joke that did nothing to slow down the pace of copying, and it simply showed how out of touch the Software Publishers Association was with the market. The campaign did nothing to cut down on copying, but it did an amazing job informing the market how easy it was to copy software. It also was in the middle of the software industry's long and fruitless struggle with DRM, which was later mostly abandoned as a failure that did more harm than good for legitimate consumers.

So it's difficult to fathom who could possibly think it's a good idea to bring back the campaign... but that appears to be what's happening. Still, the "chorus" of the song claims that copying is a crime. I would argue that this is false advertising. Copying may be a crime, but the scenarios shown in the film don't appear to involve criminal activity, but civil torts. For it to be criminal copyright infringement it needs to involve being done "willfully and for purposes of commercial advantage or private financial gain." So the ad is falsely promoting the idea that personal copying is a criminal matter -- in fact it falsely suggests that simply downloading software or music will put you in jail.

So which is more ethical? Getting a personal copy of a song you wanted to hear? Or flat out lying about the criminality of that action to the widespread public?
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Filed Under: civil, copyright, criminality, don't copy that floppy, torts
Companies: siia

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  1. icon
    Sadien, Inc. (Sadien.com) (profile), 8 Jul 2009 @ 2:48pm

    ... Adressing "SomeGuy's" Comments

    SomeGuy’s makes some interesting arguments and I’m glad to see people posting well-positioned, thoughtful retorts…

    SomeGuy said:
    “False. Unauthorized copying that is done "willfully and for purposes of commercial advantage or private financial gain" is a crime.”

    So, are you saying the putting 3 illegal copies of Windows XP on 3 generic white box machines… would be an accident?

    Allowing 1000’s of people access to your MP3’s via a bit torrent would be a simple oversight?

    Or making 2 copies of Photoshop for your buddies in art class was an “act of God?”

    I do agree that the intent of the statute is likely to prosecute those who intentionally sell bootlegs. And I do concede to your point on that matter. However, 17 USC 506 specifically reads “financial gain,” not “charging a fee.” It’s not a stretch to say that circumventing the licensing fees listed above, could be considered a “financial gain,” …thus making those simple copies… a crime. (Copyright law is ENTIRELY subjective. And it’s one few areas of law that the power is weighted entirely on one party’s behalf… the copyright owner)

    I also agree that the FBI kicking in the door while mom is in the kitchen making brownies and Jr. is upstairs downloading a copy of COD4… is a bit much. ;)

    SomeGuy said:
    “Unauthorized copying for certain usages is covered under Fair use.”

    This is a common, and dangerous misconception of 17 USC 107, “Limitations on exclusive rights: Fair use”
    There is a very, very limited allowance under the law for use certain works, without permission from the copyright holder, pursuant Fair Use. Basically, Fair Use allows a reproduction of another’s work for criticism, parody, comment, news, scholarship, and/or research. (And so that you’re aware, loading software on a computer RARELY falls into any of those categories.)

    There are four primary considerations when determining Fair Use.
    -The commercial or nonprofit educational nature of the use
    -The nature of the original copyrighted work
    -The amount of the original copyrighted work used
    -The effect of the use on the market

    In most cases, a user of another's copyrighted material must prove Fair Use, not simply claim it.

    Example... A school could not load 500 computers with Windows XP, and claim "Fair Use." They would have to prove that the loads were for scholarship in direct relation to the software (as in scholarship of the software itself)... and most importantly they would have to justify the COMPLETE USE OF 500 COPIES... and further prove that the use of those 500 copies had no impact on the market... (Which would be impossible... given that the retail value of 500 XP copies is approximately $150,000.)

    The intent of Fair Use was not to give people software for free..

    The intent of Fair Use is to allow for parody and criticism of other people's work.

    SomeGuy said:
    "Again, false. There are plenty of other incentives to create content..."

    Respectfully, you are wrong, for several reasons.

    A. There is nothing that says an author HAS to charge a user. They merely have the right to charge, if they so choose. I agree that there are several business models that would allow for free use of copyrighted material. That's not the point. The point is that the law is designed to allow an author to choose ANY business model he or she wishes to engage.

    B. We live in a capitalistic society. Our financial and economic systems are based on the idea that if one does work and/or provides a product or service, that entity deserves to be compensated. Period. For better, or worse... that's the nature of how we do things in this country and virtually all other democratic societies.

    Excellent arguments on your part. Great discussion points.

    G.C. Hutson
    Sadien, Inc.

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