Re: copyright under stress

On Wed, May 31, 2000, Kevin Grierson <kgrierson[_at_]wilsav.com> wrote:
>
> [...]
> My problem with Napster and Gnutella is that it allows anonymous
> violations of the law for personal gain.

1. Well, Napster is sure not anonymous. Tracing IP numbers is easy technically, as even Dr Dre can testify.

> [...]
> I submit that the reason people use gnutella is not to publically
> disobey an unjust law, but to violate the law anonymously for
> their own private benefit.

It might be that they don't think they should bother with obeying the law -- just like many people exceed the speed limit. It's not necessarily a rational calculation that "personal benefit" exceeds "rights of copyright owners" -- it's more like, "I want to be able to use this neat technology to do something useful, and I want to be part of this popular culture" (that the media monopolies wish to claim ownership of).

Another point is that huge numbers of people are alleged to be violating the law here. In the past, when this has occurred, laws are generally changed. Especially when the laws seem only to protect one segment of the economic market, and other segments find the laws prevent them from making money. See Michael Ovitz's scour.net, for example.

> it allows anonymous violations of the law for personal gain.

2) I don't know what "personal gain" has to do with anything here. Infringement of copyright online is a criminal offense even if non-commercial and done for no gain at all. Here we see sharing a recording (that you own) with your friends being made into a criminal act, while sharing a book with your friends is not, if not online. It's a circular argument to claim that this violation of the law is a violation of the law and thus wrong.

> I also find your argument that copyright amounts to "appropriation from
> the commons" unconvincing (and ironic, given that the "tragedy of the
> commons" led to property rights in the first place). The works that
> are being copied were not in the commons to start with -- they were
> placed there by their creators, who had the option of not making them
> public, but chose to do so because of the protections afforded by
> copyright.

1. It's not clear how the 'tragedy of the commons' applies to a domain such as the Internet, where scarcity does not seem to exist. And it's not clear how one can oppose the 'tragedy of the commons' and yet promote 'property rights' here, since it is precisely the existence of these property rights claims that is threatening the commons. (Otherwise, the fans of a particular rock group, for example, don't want to give up all rights to be part of that particular commons of fans, and therefore they share amongst themselves -- for example, by creating new but unlicensed stories about StarWars figures.)
2. Yes, it is true that the 'creators' of the works had the choice to protect them as private property and trade secrets, or to openly publish them under protection of copyright. But then you have to realize that if they did the latter, they did give up certain rights -- for example, when the term expires. Here, the question is, what rights of fair use do users of a copyrighted work have? Are the rights in the MP3.com, Napster, and Gnutella instances more analogous to Sony v Universal Studios, or to some other case? I don't think one can solve this question on moral grounds -- even though Judge Harrington in the CyberPatrol case verges on that.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf