I just finished listening to “This week in Law” episode 20, which is subtitled “Ethically Cleansed”. This is a group of lawyers talking about various issues of the day, and music copyright came up. I found that my idea of fairness is closer to the position of the recording industry than these lawyers were expressing, but not surprising my views were still closer to these lawyers than the industry. It was an interesting opportunity to think about where my own moral compass is on the issues they raise, and compare this to where society appears to be going.
One case these lawyers brought up was a service where you would ship your CD collection to this company who would rip the CDs onto an iPod. The company would then sell you that iPod with all the music on it, and then resell all the CDs into the used market.
The lawyers went back and forth with this, but generally thought that this was both legally and ethically OK. One of the lawyers spoke about a group of law students who didn't even have a back-and-forth and thought there were no legal or moral issues to discuss at all.
My own thinking is different. While I support the first sale doctrine as well as fair use (better than Canada's Fair Dealings), I believe that both of these concepts work against the argument that this is an OK practise.
The first sale doctrine suggests that when you buy content on tangible media you have the right to resell, loan, destroy or otherwise treat the tangible media which stores a copyrighted work like other tangible things in our economy. I believe a logical extension of this would be that like any other tangible thing, once you no longer posses the tangible media you should no longer have use of what is stored on the medium. There may be grey areas such as whether being able to enjoy the work while you have loaned the medium or if the medium was damaged is a form of time shifting, but to me it is clear that if the tangible medium is given away or sold that it should no longer be legal to use a ripped copy/backup.
In the USA I do not consider this activity as qualifying under their Fair Use regime, given the resale of the medium clearly harms the market for the music. I have a hard time understanding how this should be considered “fair” even with a moral rather than a legal definition of the language.
In Canada the legal question is largely resolved for recorded music due to the Private Copying regime which clearly allows you to make private copies of audio recordings regardless of source. This source could be a medium borrowed from a public library, something recorded from the radio, or something where the medium was purchased and then later resold.
I believe that we should be splitting up the regime into truly private activities (like time, space and device shifting) which would be uncompensated fair uses, with public uses being clearly covered under either regular copyright (permission required) or a compulsory license (payment required). I may not agree with the existing private copying regime, but it is the legal regime we currently use in Canada.
What is interesting to note is that I'm someone who is seen by the creator groups created in past decades and the content industry as being somehow “anti-Copyright” and yet I seem to be much closer to their viewpoint than a growing part of the general public.
While I may agree with fellow copyright holders on many things, it is sometimes hard to be sympathetic to their position. One place where reasonable conversations quickly fall apart is abuse of the term “theft”.
I bought a DVD last week that copyright 2005 by Twentieth Century Fox Home Entertainment which had one of those “You wouldn't steal a car” advertisements on it. This is an advertisement which I consider to be both factually incorrect, and offensive. Downloading is not “theft” for any reasonable meaning of the language, and simply represents a narrow ideology held by a few extremists. I would laugh at the cooks who think that copyright infringement is similar to theft, except that those who hold this ideology hold powerful positions within the content industry and this is greatly harming this critically important sector.
I've written before how copyright infringement is nothing like theft.
This flawed thinking closes ones mind to the very nature of knowledge as being non-rival, meaning that if you tell me something then this does not diminish your ability to know the same knowledge. Understanding this is the key to making a living with knowledge. It allows us to separate activities which maximise the number of people who help pay for this knowledge, rather than seeking to minimising the number of people who access this knowledge without permission. It turns out that activities which focus on minimising unauthorised access to knowledge will inevitably reduce the number of people who help pay for the development of knowledge. Far from increasing revenues, these techniques reduce revenues and greatly threatens those seeking to make a living in the knowledge economy.
I may not be laughing at these advertisements, but many people are. When people get this basic aspect of the nature of knowledge so fundamentally wrong, why should anyone be expected to take anything else they may have to say seriously?
This leaves me a bit trapped with people on one side that believe that once they have purchased something that they should be able to do anything they want with the work even after they have resold it, and those far on the other extreme who think that any unauthorised access to knowledge is analogous to “theft”. It does suggest that the clashes of ideology will only get greater, with the political and legal system trying to make sense of it all.
No matter what side of this debate you are on, it is important that you give the question some thought. How we treat knowledge in our changing economy will likely turn out to be far more critical in the long term than any of the other issues we are treating as a crisis today.
Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada's Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.