Thursday, January 19, 2006


Imagine that you show up at a business one bright and sunny morning. You claim to be able to build something that the company can use. The company spokesperson says, "Show me, and if I like it, I will buy it."

So, you spend a couple of days working. You not only put your time into the project, but you buy your own tools and your own materials. When the project is done, you are out some money that you invested in the project. However, you invested the money because you are confident in your work, and expect to get paid. You are sure that you are producing something the company would like.

You were right. The company looks at what you built and says, "This is amazing! This is a work of genius! Now, pack up your tools and go away."

"But what about my money?" you ask.

With a bemused chuckle, the company spokesperson says, "We decided not to pay you. We have your product. We will use it. However, you will get nothing from us but our warm appreciation.”

This is not a good person.

Yet, this company spokesperson has the same moral qualities as your standard book, music, video, or software pirate. The pirate also takes a look at what another person has produced, under an agreement that "if I like it, I will buy it." He likes it. He takes the product. However, he sends the worker home without a dime."

Ironically, those who take information in this way, if they were to show up at a company like one described above, and were to have their work taken from them without pay, would scream the longest and the loudest at the unethical and immoral behavior of the corporate executive. They would rant without end at the conspicuously evil corporation that takes the sweat and the blood of the laborer without fair pay -- without ANY pay.

Yet, in the spirit of 99.99% pure hypocrisy, they will utter these complaints while stealing the labor of their favorite writer, musician, producer, or programmer.

In fact, the actions of the pirate give rise to and support the like actions of the corporate executive. The actions of the pirate promote the attitude that taking the products of another's labor without pay is permissible. The actions of the pirate help to create and support the culture within which the corporate scavenger operates.

There are people who give things away for free. If that was the deal, then there is no shame in taking and copying and distributing those products. The artist may find more value in being heard or seen or read than in being paid. Or, the artist may recognize what his product is worth, and giving it away is the closest he can come to putting a fair market price on his efforts.

I produce these essays under these types of conditions. It would be foolish for me to offer these essays under the terms, "If you like it, then pay for it." Perhaps even “free” is too high a price for these essays, but I cannot afford to lower the price much more than this.

However, I am not talking about the person who offers this type of freeware or shareware. I am talking people who offer their product clearly under the condition, “If you like it, you buy it.”

Anybody who would take these products without offering payment should consider the corporate executive who takes the products of the laborer in my sample case. He should consider what he thinks of that type of person, because he IS that type of person.


Richard Y Chappell said...

In your story, the worker has a prior agreement with the company, who then renege. In this sense they did "steal his labour", because he wouldn't have put in that time and effort making the presentation without this prior agreement. As such, they made him worse off.

This is disanalogous with file-sharing. If I lend my friend a book, this in no way harms the author. The same is true if the book is instead a CD. The artists aren't harmed. No-one else is affected in the slightest, except for my friend who gets a benefit. And when you can offer a benefit without any harm, it would be a weird fetishization of "property rights" that opposes this.

Anonymous said...

Utterly appaling, Richard. You've managed to reduce one of the cornerstones of modern civilization to "a fetish." When you create something, you own it. If someone else uses it without your permission, it's theft. The artists are harmed when you steal their music, Richard. They lose out on the money (however small an amount it would be) that you would have otherwise paid for the music.

Do you think you pay all that money for a penny's worth of plastic? The data on that disc is what's valuable, and you didn't make it - the artist did. When/if you manage to create something that people are willing to pay to enjoy, feel free to give it away. In the mean time, respect those who don't.

Richard Y Chappell said...

Oz, did I give you permission to use my name? How dare you "steal" my nomic property! (Or is it my parents' property? Best call the lawyers to sort that one out.)

Seriously though, have a read of Lessig's (free) book Free Culture to get a better idea of how overly simplistic your characterization of intellectual property is. (Lessig still strongly opposes "piracy", and is actually quite moderate. But he does an amazing job of showing just how extreme your sort of position is -- and how at odds it is with the history of intellectual property in Western Civilization. My "book" example above shows this, for instance, though you have conveniently ignored it.)

By your definition, it is "theft" for me to hum a tune by my favourite band. (After all, in so humming, I "use" the melody created by someone else, without their permission.)

"They lose out on the money (however small an amount it would be) that you would have otherwise paid for the music."

You assume that the pirate downloads music instead of buying it. That is an empirical assumption, and I think quite often false. Often people download music that they would not otherwise buy. (The alternative to them downloading it is instead that they would simply not get to hear the music.) That was the scenario I meant to describe in my previous comment. (From what I've heard, it's also common for file-sharing to benefit artists, as people get exposure to their music -- and subsequently buy albums and concert tickets -- who otherwise would not have.)

Anyway, all this makes it clear that the issue is not settled by some simplistic invocation of "property rights" and accusations of "theft". Rather, it depends on more complicated empirical questions, especially concerning whether file-sharing harms artists, etc.

Alonzo Fyfe said...

Richard: Actually, it is not disanalogous where the person who created the file did so with an intention of selling it -- people who, in fact, would not have put the time and effort into making a presentation without this prior agreement.

There are people who like to write or compose or perform who want to make a living at it. They seek to do this full=time. They do not want to be a McDonald's fry cook during the day time and write in the evening. They seek to write all day.

Yet, file sharing says that whatever they make can be taken from them without compensation, leaving them no option (insofar as they like to write, or to compose, or to perform) but to do be the fry cook (or some other occupation) and perform only for free.

What is worse, this degrades the quality of the product. The artist who can work on his or her craft full time has much more of an opportunity to improve (with practice) than one whose product is given away free.

These are real harms.

Now, there is a difference between lending a CD or a file to somebody, and copying it. I can lend my pickup to my neighbor -- it is, after all, my pickup. However, when I do so, I cannot make use of it. However, if I had the capacity to clone my pickup at low cost -- making hundreds of copies and sending them off to others -- we can expect that this will have a significantly detrimental effect on the automobile industry.

Again, these are real harms.

These harms do not just affect the people in the industry. As that industry dies, the resources for new creations and innovations dry up. As less and less money goes to artists and other creators of these types of products, less and less get invested in creating these types of products.

Now, artists may offer recordings of some of their work for free as a loss leader -- as you mention. Similarly, a store can give away free samples of certain types of food. However, these marketing gimicks work only insofar as there are other goods or services that cannot be given away. The grociery store giving away "free samples" would do little good if people can rush in and take anything they want off of the shelves -- if there was no way to stop these people at the door and say, "pay for that, or leave it behind."

Similarly, the idea that file sharers only collect recordings that they would not otherwise pay for is bogus. Assume the local grocery store did throw its doors open and say, "Everything is free." Certainly, a lot of the people would grab things that they would not otherwise pay for. However, this does not imply that the grocery store is not suffering any losses a result.

Richard Y Chappell said...

Alonzo, in case of artists and their audiences, there is no prior agreement. Artists might create their music in the hopes that people will pay for it. But they didn't procure an agreement from anybody before they began. They did not "show up at a business one bright and sunny morning" like in your story. That's a significant disanalogy.

"if I had the capacity to clone my pickup at low cost -- making hundreds of copies and sending them off to others -- we can expect that this will have a significantly detrimental effect on the automobile industry"

Indeed. Old industries will always oppose new and more efficient technologies that could out-compete them. (Again, see Lessig's book for some very insightful discussions.) That's no reason to use the law to stifle innovation.

New technologies make the record industry obsolete. So much the worse for the record industry. Of course, we will need to find new ways to recompense artists and encourage their creative work. I just think alternative institutional arrangements could meet this goal better than our present ones.

Finally, insofar as present file-sharing actually does harm artists, then I certainly agree that's a problem. But of course not all file-sharing does harm, as explained in my previous comment. And there's no basis for holding the harmless stuff to be wrong.

Blar said...

Here's a hypothetical example. Let's say that a musician records a song and sells it online as a digital music file. Let's say, in a world with file-sharing, 100,000 people get the song, 20,000 of them pay the musician $1 each and the rest copy it from other people, and the musician ends up with $20,000.

In another world with a magical copyright protection wizard, only the 20,000 people who paid $1 each for the song get the song, and the musician again ends up with $20,000. Do you think that this is a great improvement?

In a third world, where there is a copyright protection wizard but some people fail to learn about the musician because they don't come into contact with the shared file, 19,998 people get the song by paying $1 each, and the musician ends up with only $19,998. Do you think that this is better than the original world, which had file-sharing? Who is better-off in this world than in the original world? Who is worse-off?

If your response is that, in the real world, eliminating file-sharing would make music sales go up, not down, then your opposition to file-sharing depends on that empirical claim, not on the property rights of intellectual property creators.

Anonymous said...

As a programmer, I feel competent at presenting both the interest of the producer and the consumer. This will be a lengthy comment but will hopefully resolve your argument.

A shareware program - free to download and distribute, but limited by a lack certain functions; has a purpose to inform the audience of a program's existence. In the same manner bookstores allow people to read the first few pages of a book, film makers create trailers, music distributors allow for the download of one song per album etc. Ignorance is an excuse, not an argument.

Unrealistic prices are an argument however.
If a product is prized above its ability or above the capabilities of its target audience will be 'stolen'. Microsoft programs, Nike sportswear and similar products are only slightly better than brand-less products but are sold at much higher prices. The brand itself dose not justify the cost and the product is therefore ripped. Millions are said to be lost in this way but that is not true. The millions lost are a result of price inflation. There actually is a loss, but one much smaller than proclaimed. There would be no loss if people could get a brand for reasonable price. Diamonds are expensive, but they are not necessities. Clothes and PC operating systems (in our technological society) are necessities, which is why people rip them off. Insofar I have not herd of a reasonably prized necessity being ripped off.

For non-necessities such as music, there exist accessible, legal and reasonably prized alternatives like: radio, cinema, libraries, cable TV, pay-per-view and so on. You don't have to own a product to experience it legally, but if you want to experience it at will, that too can be arranged.

As for the benefits of sharing mentioned by Richard:
Professional programmers have a system of internal intellectual property sharing as a way of having both security and unhindered development. A number of web sites is devoted to code exchange where programmers solve each other's problems. This helps to optimize programs, improve their performance, make them less costly for the audience. It enables the production of more programs in the same amount of time, and also serves to educate aspiring code makers. I presume other trades have similar practices.

Note also that programmers never rip the programs of other people. We prefer open source freeware, as it can be easily improved by the users themselves, and is often of higher quality than some commercial products. The fact that companies like Microsoft walk the fine line of monopoly, and tend not to contribute, is why they are disliked in the programmer community.

To conclude, three factors ensured the fairness of all trades from ancient times:
The guild's internal cooperation - improves products and educates new producers
Loyal competition - establishes reasonable prices and protects consumers from monopoly
Laws against theft - protect producers from piracy

Anonymous said...

Re industry obsolesence:
Performers work hard to create something. They work with record labels to establish a means of compensation for that work. Perhaps CDs are obsolete compared to MP3 format. This does not allow you to steal CDs from record stores. Car dealers don't give away last year's models when the new ones come out. The fact that you want something enough to take it means that it has some value to you. You are thus obliged to pay for it.

Programmers: same thing. If you write some good code with the intention of sharing it so others can use or improve on it, great. But some write it with the intention to make a ton of money, and if so it's their right to guard their code.

If you spent seven years inventing something that nobody had ever thought of, wouldn't you be angry if someone copied your design and flooded the market with cheap knock-offs? Of course they can sell for less, they don't have to make up the massive investment you put into the design. Music is even more so. Nobody else could have written my favorite song exactly the way I like it (Hell, even the original artist can't always perform it right). Therefore, he deserves to be rewarded for his labor and creativity.

Richard Y Chappell said...

One can agree that artists should be rewarded, without assuming that intellectual-property extremism is the way to achieve this.

It is also plainly false that we are "obliged to pay" for everything that "has some value to" us. (Again, Lessig discusses this in his book. I really can't recommend it enough -- it's a real eye-opener.)

Anonymous said...

Okay, I don't mind moderating a bit. If you value something and the owner wants you to pay for it, you must pay for it in order to morally use it.

Anonymous said...

I can't credit this article 100%, but it probably did help tip me over the edge. I have decided to go legit with my software. It's a huge expense -- about $1,200. I'll use open-source stuff where I can, but I've become accustomed to some of these industry-standard products, so an alternative just wouldn't do. That said, I do think intellectual property laws in the U.S. -- the DMCA in particular -- are unprecedented and unreasonably draconian. And I say that as a programmer, writer, and photographer. (And don't even get me started on the one-sided EULAs included in most commercial software products!)