This is daily column on Plagiarism Today where the site brings you three of the days biggest, most important copyright and plagiarism news links. If you want to offer your feedback on the column, use the contact form or just follow me on Twitter at @plagiarismtoday.
1: Guardrails for the Internet: Preserving Creativity Online
First off today, a great deal of controversy is swirling over an opinion piece posted by Michael Lynton, the CEO and Chairman of Sony, to the Huffington Post.
In his editorial, in this editorial, he says that piracy is a major burden on the copyright holders and puts the entire Web at risk and proposes putting safeguards on the Web to, in his view, make the Web a better place to sell and promote creative works. He likens the Web to the highway system and encourages that “rules of the road” be placed on the Web.
Naturally, this has caused a great deal of controversy and led some to even post paragraph by paragraph rebuttals. It seems as if, rightly or wrongly, this is going to be the conversation piece for copyright for the next few days…
2: Gaming anti-piracy chief blasts ‘terrorists’
Next up today, Yutaka Kubota, the president of Japan’s Association of Copyright for Computer Software, used the word “terrorist” to describe those who pirate Nintendo DS games. This has upset many on both sides of the issue and flames tensions at a very critical time for Japan.
This come on the heels of Nintendo releasing estimates that 120 million DS games have been bootlegged and Japan is considering legislation to criminalize such piracy, which is currently legal under current Japanese law.
3: EU pushes music industry to open up online rights
Finally today, EU antitrust regulators have sent a strong message to the various licensing boards and publishers “to move quickly to adapt their licensing solutions to the online environment.”
This isn’t the first time the EU government has made statements along these lines but, this time, it seems to be tinged with more of a threat. The European Commission has already found the collecting societies guilty of anti-trust violations but did not impose any fines at the time, which was July of 2008.
The biggest problem that the EU government has is that there is no EU-wide licensing system. There are different systems in most countries, 12 overall, and artists are typically bound to the organization that serves their particular nation. This is one of the reasons why Apple does not provide an iTunes store EU-wide.
Suggestions
That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.
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Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.
If Disney is making it available to consumers, but not necessarily quite in the format they want, that is different from the example of them showing it on TV once in a blue moon. Future harm is not something that I am sympathetic to, especially when it comes to copyright holders being able to exploit their work for decades. There is a fine line between protecting their efforts while the product is fresh, and allowing it to become a form of rent seeking. Rent seeking is the best name for what a lot of big copyright holders do with works that are well past the date that they were originally released.
If Disney is making it available to consumers, but not necessarily quite in the format they want, that is different from the example of them showing it on TV once in a blue moon. Future harm is not something that I am sympathetic to, especially when it comes to copyright holders being able to exploit their work for decades. There is a fine line between protecting their efforts while the product is fresh, and allowing it to become a form of rent seeking. Rent seeking is the best name for what a lot of big copyright holders do with works that are well past the date that they were originally released.
This may simply be the area where we have to agree to disagree. I don't think there is much room to doubt that downloads of an item today will hurt the future sales of it, at least some, especially if the product is already well known. Some of the people who downloaded the Little Mermaid probably will not purchase it when it is re-released. Is Disney owed a kick in the pants, sure, but there is no doubt that Disney is being harmed.Fair use case law seems to agree with this, albeit in a roundabout way. One of the four factors is harm on the potential market, but the cases have been clear that one does not have to be in that potential market for it to be harmed.For example, if I sell books, if someone comes along and makes and distributes an audiobook version of my work without permission, it's no less of an infringement if I wasn't already selling audio books. Just because I wasn't in the books on tape market and the audio books were not likely to displace my sales, they are still an infringement. Fair use considers all potential future markets for a work. whether or not the person is in them today.Likewise, Disney may not be selling copies of The Little Mermaid, but they are licensing it and making it available via other channels. In short, they might not currently be in the market of selling copies, for whatever reason, but they are still exploiting their copyright in the work.The point of all of this is that, even though the ethics and legal issues here are different, is that it is not just the current markets the copyright holder is in that deserve consideration, but the future ones. If we say it is acceptable to download movies or songs illegally because they don't happen to be for sale right now then all of the potential markets for the work the copyright holder is not currently in become possible points of exploitation.If a work has truly been abandoned, that is one thing. But doing what one pleased because they aren't in that market right now has a lot of potential for disaster down the road.
IP infringement is not theft, strictly speaking. In order for there to be a victim, the victimization has to occur in a direct trade of sales for loss of sales due to infringement. The longer that a studio waits to publish its content after getting the public's attention, the less of a legitimate case they have for claiming that they were harmed because they are losing out on the reasonable window of opportunity for selling their good while the public is demanding it.Disney did not sell the Little Mermaid for many years after it was released in theaters. I don't think anyone who copied it was necessarily doing anything wrong because Disney made no attempt to sate the demand for it, and Disney did not lose any property when it was copied during that time.
Sorry for the delay in response, I've been out of town Since Friday. If the work is not for sale and the company has no plans to make the work available, it may easily be seen as a victimless crime. With that you run into issues similar to what abandonware advocates and even Google Book Search are dealing with. However, I think that problem is becoming less and less of an issue. With print on demand and streaming services so common, there's almost no expense in making copyrighted works available so there should be fewer and fewer abandoned works moving forward. Many of the cases that we are talking about here are ones where the copyright holder has not made the work available (either due to desire or inability) and the work is being downloaded before it goes on sale.Here, there is a clear potential for harm. At least some of the downloads are lost sales for when the work is finally distributed. Not all, perhaps not even most, but at least some.I agree that copyright holders should do more to make their works available when users want it, it's good business in general, but it seems a stretch to argue that it is a victimless crime in these cases.
At what point does one be able to claim to know that content providers "have no plan to offer the content"? Or is it just another attempt to justify something that is unethical? Take Disney for example. They have a long history of releasing their content for a limited time and then putting it back in their vault for a number of years. The whole basis of intellectual property is to allow the owner of the copyright control on how their content is used and distributed. Nobody but them has the right to make the decisions of what's done with said content, especially not an impatient consumer.
I don't entirely agree. When they are not making it available, it becomes a victimless crime. My case is not a pure example of that, but in many cases, they have no plan to offer the content. As such, they cannot reasonably be said to lose anything when the content is copied. Thus, in a number of instances, it becomes a victimless crime since the target didn't even lose theoretical income.
I'm the first to agree that the movie and music studios are as much to blame as anyone for their problems. If they had seized upon the Web in a timely matter, they might have been able to head off at least the majority of the piracy issue. I also agree that a big part of solving, or at least reducing, the piracy issue is going to involve creating alternatives to piracy that are appealing and practical.But yet I find that there is something strange about this mentality. Bear in mind that this isn't a slight to you or anyone else, but with any other good or service, if it is not available or is not at a price one deems "fair", many feel they have the right to obtain it illegally and that they are justified in doing so.Though copyright infringement is not the same as physical theft, you could not apply this mentality to anything else. If you saw a new phone at an electronics expo and wanted it, but it wasn't available for two more months, you could not break into the factory and steal a few. If the price of toilet paper is too high at a store, you don't walk out of the store without paying.Again, there are differences between piracy and physical theft, but I think people who pirate things saying it is too expensive or not available soon enough do themselves a disservice in the long run. Copyright will not change until the business models allow for it to. By actively supporting new business models that treat customers better, one does more to bring about copyright reform than a back and forth where studios treat consumers like garbage and many simply download content illegally.If something you want to watch is not available, the best thing, in my opinion, is not to pirate it now under the promise of paying for it later, but to spend your money now on those with better systems. If CBS screws up, don't give them a chance to blame piracy or any of your money, even if you like the show, give it to someone who gives you what you want, when you want it.With entertainment, this is hard. But we wouldn't take poor treatment from a store so we shouldn't take it from TV networks and studios. It's harder with entertainment because it becomes part of our personal culture. But we do have to stand up for ourselves at some point and piracy, in the end, is not the way to do it. Once again, this is not intended as a slight against you or anyone, just my thoughts on the ongoing conversation.
As I said, despite his protests that he does get it, he doesn't. Piracy is about convenience for a lot of people, and companies like Sony aren't doing what it takes to fight that by making all of their catalog available on stores like the iTMS. Recently, I had to resort to downloading an entire season of a show from the Pirate Bay because it isn't on TV right now, isn't on DVD and isn't on iTMS. Now, that's rare for me, and I fully intend to buy the DVDs when they come out as compensation, but the fact is, CBS (in this case) screwed the pooch just like Sony does on a regular basis with digital distribution. If they'd consistently posted all of their content on the iTMS, I'd have just gone to the iTMS on my Apple TV instead of even thinking about TPB.I think there'd be a lot more sympathy if it were all available at a fair price AND piracy were still rampant, but obviously the availability of most media is ridiculously limited compared to what it could be if the legal departments of these companies would wise up.