Posts Tagged 'pfft!'

Infringement and Terrorism: Pfft!

The Rand Corporation has published a report linking the proceeds of infringement (of films) with funding of terrorist groups.  This is a meme (infringement funds organised crime/terrorism) which copyright ideologues have been pushing for  many years, with varying degrees of success.  The argument is that if it funds terrorism then something must be done to stop that flow of funds.   Ideologues then argue that this means that the scope of copyright and the penalties for infringement must be ramped up.[1]   Such an argument is without a basis in logic.

We can concede that copyright infringement is a source of funding for terrorism and organised crime.  We can also concede that something should be done about it.  It does not follow that what should be done is to ramp up the copyright monopoly (by granting greater monopoly coverage or greater penalties for infringement).  Indeed, the presence of the monopoly is the only reason that infringement can be a source of funds for these groups.   Without it, the price for the goods would be the marginal cost to produce (and there is no reason to believe that these groups have a comparative advantage here).

By definition, the fact that something is illegal does not stop organised crime and terrorists doing it.   On the contrary, they do more of it.  All that ramping up the monopoly does is reduce competition from softer targets.  This means that criminals and terrorists are able to make more money, not less, and the share of revenue from infringing practices will be more weighted towards the organised criminals and terrorists.  For example, the student who makes some money selling infringing copies at the local market stalls reduces the amount of profit that organised criminals can make.   It is this sort of soft target who will be removed by ramping up the monopoly.  Does anyone honestly think it’s better that this money goes to a terrorist rather than the student?

Does anyone honestly believe that people who are actively planning to commit mass murder are going to be deterred by a jail sentence for copyright infringement?

That terrorists profit from infringement is an argument against copyright, not an argument for more copyright.

Notes:

[1] Which the report duly does: “The RAND report says that counterfeiting levels are not likely to decline unless governments worldwide commit more resources and create greater accountability for intellectual property protections. Such a commitment would need to produce stronger anti-counterfeiting laws, consistent enforcement against pirating and stronger penalties, including larger fines and prison sentences.

If you were interested in this post you might also be interested in these other posts:

Piracy and Malware – Pfft!

Copyright Infringement as Stealing: Pfft!

Copyright as Respect – Pfft!

Advertisements

Copyright as Respect – Pfft!

I can still remember the way it made me feel sick in the stomach.  It was the first time I heard the “copyright-as-respect” meme.  It was at first Unlocking IP Conference at UNSW in 2004.   I was on a panel talking about something-or-other copyright.  During questions from the floor, one of the delegates related a story about how their 8 year old daughter had invoked copyright in scolding their six year old sister for copying a dance she was doing.  The questioner remarked that it was a good thing that perceptions of copyright had filtered into the community that far.  As I mentioned, to me this principle – that a young child ought not be entitled as of right to learn from her sister though imitation – was so perverted as to make me feel ill, physically.   Not so much because it was self-evidently stupid, but because it presaged the dark world of the future that copyright ideologues would push on society given half a chance.

Not so the representative from the copyright lobby.  No, in their view it was all about respect, respect for the creator of the work and blah blah blah.  [I was tempted to respond but I couldn’t find any way of expressing myself which wouldn’t end up as a personal attack, so I held my tongue]

As far as I can tell, the “copyright-as-respect” meme is the one used when a copyright totalitarian is in hostile territory (note the title of the conference).  I don’t recall ever hearing the meme, for example, in the parliamentary inquiries I’ve been to with copyright ideologues from time to time (happy to be corrected).   Of course, running one argument in one circumstance and another in another with a view to pursuing your own advantage is being less than full and frank.   At the least, it is not being very respectful to your audience.

I don’t know any parent who tells their children it is wrong to share, especially with their siblings.  Do you?

Copyright Infringement as Stealing: Pfft!

Note on Copyright Infringement as Stealing

Brendan Scott, October 08

Summary

Infringement does not appear to fit the meaning of stealing or theft because an infringement does not involve either a taking or a deprivation.  Further, intangible rights seem almost impossible to steal by definition.  To use the infringement-as-stealing meme demonstrates something of a lack of respect for language and consequently a lack of respect for the people to whom you are speaking.

Introduction

There is a copyright-infringement-as-stealing meme which has been pushed for some time, but seems to be relentlessly marketed at the moment.  So, for the benefit of those being exposed to it, it’s appropriate to consider what the law actually says about the meaning of words like “stealing” and “theft” and whether it’s possible for a copyright infringement to fall within the meaning of these terms.

Attack of the Dictionaries

This what my Butterworths Australian Legal Dictionary (1997) has to say about what the words mean:

Stealing has no definition of its own, but has a reference to common law larceny and theft.

The definition for larceny is:

“The offence at common law of fraudulently, and without the consent of the owner or a claim of right made in good faith, taking and carrying away anything capable of being stolen, with the intent at the time of the taking to permanently deprive the owner of the property”

The definition of theft is:

“A term normally describing the offence of stealing of larceny… In some jurisdictions it is a term used to describe stealing which is defined in terms different from larceny at common law.  For example, in Victoria theft is dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it”

For the record, my Black’s Law Dictionary Deluxe Eighth Edition (US law) gives similar definitions (incorrect spellings are all [sic]):

steal 1. To take (personal property) illegally with the intent to keep it unlawfully. 2. To take (something) by larceny, embezzlement, or false pretenses.

larceny The unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently. Common-law larceny has been broadened by some statutes to include embezzlement and false pretenses, all three of which are often subsumed under the statutory crime of “theft”

theft 1 The felonious taking and removing of another’s personal property with the intent of depriving the true owner of it; larceny. 2 Broadly, any act or instance of stealing, including larceny, burglary, embezzlement and false pretenses.  Many modern penal codes have consolidated such property offences under the name “theft”

No Taking, No Deprivation, Therefore No Stealing

There are a couple of themes running through these definitions, one of which is that there is an intent to deprive someone of something – and to deprive them of it permanently.   It does not seem possible to shoehorn a copyright infringement into any of these definitions because an infringement does not involve the taking of a thing (or of personal property).  Moreover, nor does it result in a deprivation (nor, indeed a keeping of any thing taken).

Further Note on Black’s Dictionary

In fact, Black’s goes further than the definition above.  They have a special word “cybertheft” into which they put using the internet to “[interfere] with a copyright” – presumably they decided that such an interference didn’t fall within the meaning of “steal”, “larceny” or “theft”.   For your reference,  cybertheft is defined:

cybertheft The act of using an online computer service, such as one on the Internet, to steal someone else’s property or to interfere with someone else’s use and enjoyment of property.  Examples of cybertheft are hacking into a bank’s computer records to wrongfully credit one account and debit another, and interfering with a copyright by wrongfully sending protected material over the Internet.

The copyright example here is, by the way, somewhat tenuous – the authors have not used a copyright term, such as “infringement” to describe the activity, nor have they taken into account any of the myriad complexities of copyright law (what does wrongful mean?  would a fair use be wrongful?).  Presumably the “interfere with” limb of this definition would not withstand scrutiny.  Using the internet to hack someone’s home automation system and (eg) turn their lights off hardly qualifies as “cybertheft” (despite it being a clear interference with someone else’s use or enjoyment of property)  but would pass muster under this definition.

The Impossibility of “Stealing” Copyright

There is another problem for the infringement-as-stealing crowd.  Even if one concedes, for the sake of the argument, that copyright is “property”, as an intangible right it is practically impossible for anyone to steal it.  For example, if I give you the right to mow my lawn once a fortnight, how can someone else “steal” that right?  They might come and mow my lawn before you get there, but that doesn’t deprive you of the right.  You’ve still got it and you can still exercise it.  You might complain to me that I shouldn’t have let them do it because now all the joy’s gone out of the exercise for you, but in no sense have they (or I) stolen anything.  If you were to apply this term to other intangible rights, practically any interference with the use or enjoyment of any right would magically transform into stealing.

Note: This might not be the case in those foreign jurisdictions where copyright is effected through registration.  Someone might commit a fraud on the registrar to have the registration changed to a different owner.  Technically then it may be possible to steal copyright – but that would still not assist in the case of a mere infringement.

Conclusion

Infringement does not appear to fit the meaning of stealing or theft because an infringement does not involve either a taking or a deprivation.  Further, intangible rights seem almost impossible to steal by definition.  To use the infringement-as-stealing meme demonstrates something of a lack of respect for language and consequently a lack of respect for the people to whom you are speaking.

Piracy and Malware – Pfft!

Piracy and Malware – Pfft!

Brendan Scott July 08

A frequent meme in piracy trash talking is that piracy is linked to malware (example). If your child is downloading pirated material (so the argument goes) they will be downloading it from a malware infected site and infecting their own computer resulting in poor performance, data loss and ID theft.  A variant of this argument is that the downloads expose the kids to evil pornographers.  Therefore piracy is bad and the government should pass laws to stop it.

Neither malware nor pornography is present on legitimate sites. If children are avoiding legitimate sites it is because the prices charged for the material are unreasonably high. It is these high prices (combined with marketing and network effects driving demand for these products) which are causing children to visit illicit sites to acquire software. No children are infected by malware when acquiring open source software. There is no pornography on open source websites. All open source software is legitimately available from legitimate sources. If all software was open source, this problem would not exist.

Increasing penalties for infringing copyright will do nothing to change this dynamic. Indeed, it will make it worse. Any expansion of copyright further, or more rigorous enforcement of existing rights, simply insulates copyright holders from competition, permitting them to raise their prices further, thereby pushing more children towards illegitimate sites. Increasing penalties or enforcement in the hope of reducing malware infections would be like pulling the control rods out of a reactor in the hope of shutting it down. It is exactly the wrong thing to do.

We can concede that malware infecting children’s computers is not only a serious problem, but also a problem on which the government ought to take action. However, further subsidising the closed source software industry is not the solution – these subsidies are the problem. If government wishes to protect children from these evils it would use only open data formats for data storage and interchange and strongly promote the widespread adoption of open source software.


Blog Stats

  • 240,253 hits

OSWALD Newsletter

If you would like to receive OSWALD, a weekly open source news digest please send an email to oswald (with the subject "subscribe") at opensourcelaw.biz