When Google, Apple and Amazon own everything, how will we stop them?


2:01 pm - October 24th 2012

by Left Outside    


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A couple of days a go, my friend Linn sent me an e-mail, being very frustrated: Amazon just closed her account and wiped her Kindle. Without notice. Without explanation. This is DRM at it’s worst.

I cannot verify whether the e-mail exchange actually happened or whether both parties are being honest, but it is instructive of the trouble with digitally “owning” something.

In digital form, in extremis, you own very little of what you think you own. A lot of the time you are merely leasing the material. So long as nothing goes wrong, and so long as you stay onside with the usually un-burdensome terms and conditions nobody will notice.

For example, most music, films and books bought online are in fact leased. You have full use rights of the material you purchase but you don’t own it, and your use rights can be revoked if you transgress the terms and conditions nobody reads.

Most people don’t know this, and this is why people don’t mind. However, as seen at the link at the top of this page, when you break, or are thought to have broken, the terms and conditions of the lease it can be cancelled and all the content you thought you owned will vanish.

This points to one reason people pirate material. Pirated material is material you own, unlike most of that provided commercially. Paradoxically, it is in the real world that ownership allows anonymity.

In reality, we are all very traceable on the internet. Each click or digital transaction involves electronic data passing between two known, verifiable and unique IP addresses.

When you buy something in a shop in the real world you usually don’t know where the other guy lives, but on the internet you know just where their computer “lives.” That means if you annoy the person from which you bought a game, song, book or movie they can slip in and silently take what you bought.

The internet and tech sector is growing much more quickly than the rest of the economy. That means that digital goods are becoming a bigger part of what we own and these problems are multiplying.

As the digital world expands more and more of the valuable things you own could end up being leased and power will pass from the state and from individuals to private companies.

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About the author
Left Outside is a regular contributor to LC. He blogs here and tweets here. From October 2010 to September 2012 he is reading for an MSc in Global History at the London School of Economics and will be one of those metropolitan elite you read so much about.
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Reader comments


1. Man on the Clapham Omnibus

How do we stop them?

Don’t use them – use alternatives

Alternatives? How many digital retailers can you name which give you full ownership of the material you purchase?

I wouldn’t know where to start. You go read those terms and conditions.

Digital seller Steam decided to investigate the reading of terms and conditions once. For one of their major releases (I think it was the orange box) they shoved in a line that said “upon purchase steam promises to give you £5 if claimed before whenever”), only about 3 of the thousands who purchased actually noticed and claimed their £5.

And this is why I still love physical media.

You never really ‘owned’ the contents of a book anyway – as long as that book was still in copyright. Sure, you can lend out a novel or give it to a charity shop but you can’t reproduce it.

Same with music on CD, LP or cassette: you don’t own the music. And you can’t show your DVDs or Blu-rays to an audience.

What Apple, Google and Kindle are changing is the media on which copyrighted material is stored. That’s a bugger for the second-hand market and a disaster for charity shops but it makes no real difference to you as the original buyer as you never owned this material in the first place.

@Shatterface – actually, it does make rather a lot of difference to you if they suddenly decide to vapourise all “your” content because they think you’ve violated their Ts & Cs, with no explanation and no recourse to appeal.

@5 so true. What has changed with the on-line media is that the DRM system actually enables owners to physically remove, or at least disable, any copies of licensed material you’ve had.

DRM along with technical glitches have been enough to keep me from investing in things like Kindle. If I buy a paperback, I can hide it in my bookshelf (or someone else’s bookshelf…) and the copyright owners won’t be able to collect it away even when they don’t like what I say.

@5 – Waterstones were never able to come round and take a book of me though, wheras amazon can. Unless im missing something that is a huge difference.

@3 – do you have a link for that?

2. Left Outside

Baen books (science fiction publishers) not only sell content DRM free, they will also allow you to download in another format if you subsequently change ebooks. They also have a free library. I believe that a number of other science fiction publishers (e.g. Tor) do the same.

Left Outside,

For example, most music, films and books bought online are in fact leased. You have full use rights of the material you purchase but you don’t own it, and your use rights can be revoked if you transgress the terms and conditions nobody reads.

Most people don’t know this, and this is why people don’t mind. However, as seen at the link at the top of this page, when you break, or are thought to have broken, the terms and conditions of the lease it can be cancelled and all the content you thought you owned will vanish.

Another interesting thing is that the T&Cs can in effect be unilaterally changed. I agreed to different Steam T&Cs five years ago than their T&Cs today, but all my purchases are covered by the new T&Cs.

Shatterface,

What Apple, Google and Kindle are changing is the media on which copyrighted material is stored. That’s a bugger for the second-hand market and a disaster for charity shops but it makes no real difference to you as the original buyer as you never owned this material in the first place.

It could mean that at any time some digital products can be ‘revoked’ and you will have to jump through hoops to regain access. That’s what the Amazon Kindle controversy is about.
(Of course this doesn’t apply to some other digital products, e.g. mp3s I buy from Amazon, unless I lose my copies.)

Or you might want to download your digital products again some day for some reason (a format or a new PC, phone or whatever) and discover the ‘retailer’, A, has been purchased by another retailer, B, and B hasn’t yet ‘transitioned’ your purchases to its systems, and can give you no indication when that will happen (I’m not bitter).

But the answer to the headline, “When Google, Apple and Amazon own everything, how will we stop them?” is that it isn’t going to happen. Alternatives exist already because people find the T&Cs etc of Google, Apple, Amazon and Steam too onerous or expensive or one-sided, and there is no reason to think this won’t continue in short to medium term.

A bigger but longer term concern is ‘software’ as a service. When your books, movies, music and games are served from the cloud, what will you do if the company revokes access or disappears?

12. Chaise Guevara

“When Google, Apple and Amazon own everything, how will we stop them?”

We make our OWN time machine, and send some dude back to the 20th century to stop the killer robot!

(Level of corporate control over digital goods: v. bad. Title of this article: v. silly.)

This is why the books I buy are made of paper and the music I buy comes on disc. I won’t buy ‘corporate air.’

Now I am not saying that Kindle and I tunes are not convenient for the customer. Certainly the idea of being able to take all your books with you on holiday is appealing. But DRM has not been fine tuned yet. Once I press the download button I don’t want them being able to delete my property. And until such time Apple and Amazon can go fuck themselves. Especially as the price of many kindle books is only a fraction less than the paper ones.

Apple is going all out to try and destroy ‘real media’ by refusing to put DVD players on more of its products. They pretend it’s all about making them ever more slimline. But I’m not so sure. Always been suspicious of Apple for rejecting blue ray.

“This is why the books I buy are made of paper and the music I buy comes on disc. I won’t buy ‘corporate air.”

Who do you think made the Compact Disc that you are using to listen to music?

One positive about DRM – if done properly – is that it enables artists and bands to bypass the traditional structure of record labels and distribution companies. What isn’t acceptable is that apple or whoever have the right to destroy your music collection if they want, which is why DRM certainly needs to be examined and legislation made if necessary.

15. Shatterface

We need a thorough review of the whole concept of intellectual property itself.

If I buy a car I can drive it where I want. If I buy a hammer I can use it how I want. The same isn’t true of intellectual property which remains the property of the license holder.

This problem is older than Apple – it’s just that where data was stored on videotape or shiny disc people had the illusion they owned something.

(For the record I have a vast number of CDs, DVDs and Blu-rays and have no intention of abandoning physical media at present).

16. Waterloo Sunset

How many digital retailers can you name which give you full ownership of the material you purchase?

GOG.com for PC games. Although they mostly specialise in the old classic games, as opposed to the new stuff.

While they do have DRM, I’ve never heard of anyone having an issue with Steam.

Smashwords and Bookview Cafe for books. There are also ways to remove DRM from ebooks, although I suspect I shouldn’t link to that…

Emusic, CD Baby and Corporate Records for music. There’s a rumour that Itunes are going to be dropping DRM entirely; if so that’s a pretty big gamechanger. Or, buy the CD and then format shift it.

None of those are a ‘solution’ as such. They don’t have the range of Amazon et al. However, if you want to take a stand against the tech giants (and I hope you do), you are going to need to shift your buying habits towards independent & self-released creators.

17. Chaise Guevara

@ 14 Planeshift

“What isn’t acceptable is that apple or whoever have the right to destroy your music collection if they want, which is why DRM certainly needs to be examined and legislation made if necessary.”

I remember being told somewhere that a lot of DRM might be in breach of existing legislation on goods: that if you buy something, you have full rights to its use and the right to sell it on if you want to. I don’t know how true this is.

18. Waterloo Sunset

@ ukliberty

A bigger but longer term concern is ‘software’ as a service. When your books, movies, music and games are served from the cloud, what will you do if the company revokes access or disappears?

That’s becoming an increasing issue in the games market already. Always-on DRM (where you need an Internet connection at all times) is being heavily pushed by Electronic Arts especially. This would be bad anyway, let alone with EA’s record of closing servers when the games are no longer profitable.

Backlash does have an effect though; Ubisoft have recently dropped their always-on DRM. It helps that the PC market has the wonderful RockPaperShotgun to fight our corner on things like this- http://www.rockpapershotgun.com/2012/09/05/ubisoft-drm-piracy-interview/

Around 2000, the regular complaint then was about the abuse of market power by Microsoft, for which the company was heavily fined by the EU Commission. The Department of Justice in America started anti-trust proceedings during the Clinton administration but the incoming Bush administration dropped the case.

Mario Monti, now Italy’s PM, made his reputation as the EU Commissioner responsible for Competition Policy by going after Microsoft. The stockmarket value of Apple is now greater than that of Microsoft. Btw the EU Commission has recently fined Intel for alleged anti-competitive practices.

The appropriate response to abuses of market power is a pro-active competition policy to press and justify anti-trust charges. It’s not absolutely clear to me that consumers are losing out because of Amazon, Apple and Google.

” Who do you think made the Compact Disc that you are using to listen to music?”

But a disk is not air. I said I won’t buy corporate air. A disc is something I can touch. I can play it on any player I CHOOSE. And the maker can’t come and delete it from my house.

Same with paper books. I paid for it, I will do what I want with it. And if I want to destroy it I will decide not some corporate thug.

21. Churm Ricewind

@ Sally (20) “A disc is something I can touch. I can play it on any player I CHOOSE.”

While it’s true that you can play your CD on any CD player, what you can’t do is transfer the music on it to another device, say your computer or your IPod.

That’s called format-shifting, and it’s currently illegal (though the government wants to change the law on that).

The problem here is not the Googles, Amazons and Apples of this world. They’re simply delivery mechanisms. It’s the rights holders who want to limit further access without further payment. Thus the Musicians Union, for example, believe that you should not be allowed to transfer the music on a CD you’ve bought on to your IPod unless the musicians involved are paid extra.

22. Shatterface

But a disk is not air. I said I won’t buy corporate air. A disc is something I can touch. I can play it on any player I CHOOSE. And the maker can’t come and delete it from my house.

Same with paper books. I paid for it, I will do what I want with it. And if I want to destroy it I will decide not some corporate thug.

Try copying the material you think you ‘own’ and selling it on and see how the corporate thugs respond.

And try playing your VHS cassettes when your player packs in – or even your HD DVDs.

Physical media gives you the illusion of ownership and the illusion of permanence. Most charity shops won’t take obsolete media off your hands these days.

“Try copying the material you think you ‘own’ and selling it on and see how the corporate thugs respond.”

Complete red herring. I have no intention of selling it on. I own the discs, and the books, and Mr Non paying tax Amazon can’t delete them.

(Level of corporate control over digital goods: v. bad. Title of this article: v. silly.)

Nothing wrong with silly. I happen to subscribe to the Hundal model of headlining blog posts.

WS,

That’s becoming an increasing issue in the games market already. Always-on DRM (where you need an Internet connection at all times) is being heavily pushed by Electronic Arts especially. This would be bad anyway, let alone with EA’s record of closing servers when the games are no longer profitable.

I was thinking more of OnLive or Gakai, and business software in the cloud, but yes good point.

Chaise,

I remember being told somewhere that a lot of DRM might be in breach of existing legislation on goods: that if you buy something, you have full rights to its use and the right to sell it on if you want to. I don’t know how true this is.

IIRC it’s recently established you (a publisher or distributor) are not allowed to prevent someone from selling on software.

http://www.out-law.com/en/articles/2012/july/downloadable-software-can-be-re-sold-by-purchaser-but-not-for-different-number-of-users-than-originally-licensed-ecj-rules-/

There are some interesting implications.

Certainly seems to apply to apps and games, but I don’t know whether this same ruling applies to music and films.

” Physical media gives you the illusion of ownership and the illusion of permanence.”

Funny that, because books been around for hundreds of years and I can still read them. And my vinyl records I bought 30 years ago still play well on my turntable. I will be long gone before they become obsolete.

@9 After an hour or so of searching I’ve had no luck finding the original place I read about it, so given that the prospect facing me is searching a few years worth of gaming news websites looking for it I’m just going to go with ‘I must have imagined it’.

28. Churm Ricewind

@ Sally (23) Certainly you can sell on objects you own, but what you can’t do is copy them.

That’s where it gets complicated. Suppose, for example, I were to provide a link on my Facebook page to an illegal movie download. Is it Facebook’s responsibility to patrol and delete such links? Or is Facebook just a disinterested party, which has no right to censor whatever its members choose to post?

This is a big, big problem, which Google/Amazon/Facebook struggle to address.

It’s also why, Left Outside, the title of this blog post is not only silly but dangerously misleading. In the scale of things, Google, Apple and Amazon, far from owning everything, own practically nothing.

29. Chaise Guevara

@ 22 Shatterface

“Physical media gives you the illusion of ownership and the illusion of permanence. Most charity shops won’t take obsolete media off your hands these days.”

That’s different. You still own it, regardless of whether anyone’s interested in buying it.

Permanence is always an illusion, if you believe in it.

30. Chaise Guevara

@ 25 UKL

Thanks. So if they can’t prevent you, does that mean it’s illegal to use DRM software that would stop you from doing so?

If it applies to apps and games, I see no reason it wouldn’t apply to films. Arguably, game companies stand to lose the most from this ruling: games probably get fewer replays per customer than films, and they’re more expensive, hence more incentive to bother selling them off. There are a lot of games that you can play in 10-20 hours and not feel like playing again, in which time the game is probably still selling at full price.

31. Chaise Guevara

@ 28 Churm

“That’s where it gets complicated. Suppose, for example, I were to provide a link on my Facebook page to an illegal movie download. Is it Facebook’s responsibility to patrol and delete such links? Or is Facebook just a disinterested party, which has no right to censor whatever its members choose to post?”

Personally, I blame whoever’s hosting the movie itself. Although that might cause problems if it’s hosted somewhere with no copyright law, or where that law isn’t enforced. I’d blame the host’s ISP before blaming Facebook (although I might blame a site designed around facilitating copyright theft). I certainly wouldn’t blame you for posting the link.

“It’s also why, Left Outside, the title of this blog post is not only silly but dangerously misleading. ”

Agreed, but I have five shiny pennies that say Left Outside didn’t create the title. Sunny usually titles things on this site, which is a shame, because he’s exceptionally bad at it.

Amazon did not wipe the Kindle. The Kindle broke and at the same time the person had their account suspended. This meant that they couldn’t restore their data on to a new Kindle. Still a cock up by Amazon and a PR disaster, but they didn’t wipe it.

33. Chaise Guevara

@ 32 SadButMadLad

Source?

Even if you’re right, the email exchange (if real) shows utter contempt to the customer. Of course, that’s not a DRM issue.

34. Rogue_Leader

I remember when Microsoft shut down their DRM Auth server a few years ago:

http://arstechnica.com/information-technology/2008/04/drm-sucks-redux-microsoft-to-nuke-msn-music-drm-keys/

People who’d bought products crippled with MS’s DRM then had to choose which devices they wanted to play their content on and NEVER CHANGE THEM. This means that if their computer needs a reinstall of its operating system, or if you change you iPod or other mp3 player (and who ever does that?) then you’ve lost your purchases forever. No recourse, no compensation.

In today’s news:

(Reuters) – EU antitrust regulators have told Microsoft not to repeat the mistake of denying consumers a choice of rival Web browsers in its new Windows 8 operating system, in a dispute that has already cost the software giant more than a billion euros ($1.3 billion) in fines.
http://uk.reuters.com/article/2012/10/24/us-eu-microsoft-idUKBRE89N0GH20121024

36. Chaise Guevara

“the email exchange (if real) shows utter contempt to the customer”

Having said that, it occurs to me that Amazon have generally been pretty good at customer service in my experience. Even when things haven’t gone my way, they’ve at least taken the time to explain their reasoning. So I wonder if there’s something we’re missing in terms of the attitude shown in the exchange.

Chaise,

Thanks. So if they can’t prevent you, does that mean it’s illegal to use DRM software that would stop you from doing so?

They are allowed to use DRM to prevent copying, but they are not allowed to prevent selling on software.

38. Chaise Guevara

Cheers UKL.

@27 no worries. Would quite like it be to true – I’ll ask a friend of mine who does PR for games companies to go digging.

40. Shatterface

That’s different. You still own it, regardless of whether anyone’s interested in buying it

You own the media, not the content – that’s why I’m arguing for a fundamental reassessment intellectual property rights rather than fiddling with the current system. Copyright doesn’t just prevent me copying material it places restrictions on me from playing it in public, and limits the use I can make of it.

For instance, if I chose to write a novel of my own in Na’vi or Klingon I would have to pay for the use of the language even if the stories, characters, etc. were entirely my own.

Up till recently the rather nebulous nature of intellectual property was masked because such property was tied to the artifacts which stored it.

41. Chaise Guevara

@ 40 Shatterface

That’s all fair enough: just wanted to point out that there is a difference in that when you buy a physical copy of a work you generally own that copy, whereas with DRM you often don’t.

I’m not against IP but agree that it’s too strong in some respects. Sometimes the issue isn’t the law as written, but the way the system makes it easy for powerful players to hurt smaller ones even if their claim of infringement is not valid.

In video games, a relatively new market, there are some odd patents out there, like one reserving exclusive rights on featuring a minigame during a loading screen. It’s possible that would fail if challenged in court, but nobody wants to take the risk of haemorrhaging money during a protracted case, so we consumers are stuck staring at non-interactive loading screens for now (I think the main issue is in the US, but that’s a huge market that massively determines design). And this sort of thing is no doubt hampering art and development in more serious terms, too.

In this case, it sounds like the main problem is erring on the side of generosity when granting patents, and trusting courts to sort out any fallout. And possibly that the people who grant patents aren’t familiar with the medium, so it’s harder for them to see what qualifies as original and non-obvious.

@21. Churm Ricewind: “While it’s true that you can play your CD on any CD player, what you can’t do is transfer the music on it to another device, say your computer or your IPod.

That’s called format-shifting, and it’s currently illegal (though the government wants to change the law on that).”

Thankfully, the BPI and most rights holders acknowledge that format shifting (ie copying for personal use) is acceptable use. A change to the law, of course, would be welcome.

See: http://www.out-law.com/page-6986

43. Chaise Guevara

@ Churm and Charlieman

IIRC, the rationale for format-shifting being illegal is that you’re not using the material in the way the owner intended it to be used. Which is the most ridiculous stalking-horse I’ve ever heard. If an album is available on CD and MP3, and I buy it on one format and burn it onto the other, how is that not how it’s intended to be used? Why would the owner even care, anyway?

No, it’s obviously that burning helps pirates, and banning burning harms consumers, and the industry would rather consumers suffer than them. You get the insane situation where someone might already own an album on CD, then buy it again so they can listen to it on their iPod.

I don’t know if it’s actually been tested in court, though.

@43. Chaise Guevara: “IIRC, the rationale for format-shifting being illegal is that you’re not using the material in the way the owner intended it to be used.”

The old rules about format shifting were created in the 1950s and 1960s when a quarter inch, open reel tape recorder was the hip thing to own. Early mix tapes and compilations were created on them. I was given one (a ropy device) in the mid-1970s and the first thing that I did was create my personal compilations from vinyl recordings owned by my sisters.

The format shifting rules were not intended to stop my bedroom recordings. I didn’t know anyone else who owned a tape recorder and I wasn’t going to give my tapes away because they cost so much.

Cassette tape recorders changed the environment a bit. It became common to record an album onto cassette and “lend” it to a mate. If the mate enjoyed a recording, he’d probably buy the album on vinyl. Cassette recordings, even the official “professional” ones, rarely sounded as clearly as vinyl. Pirate recordings, which were sold pretty openly via small ads, were usually dreadful and a complete waste of money.

The anti cassette piracy adverts at which we now snigger were partially true: the music sounded rubbish on pirated tapes.

“Which is the most ridiculous stalking-horse I’ve ever heard. If an album is available on CD and MP3, and I buy it on one format and burn it onto the other, how is that not how it’s intended to be used?”

The original intent was that you bought a personal licence, and that the licence was fixed to the physical media. Few people thought that you’d wish to buy a vinyl album and then make a lousy cassette copy to play in the car. When society changed, they adapted too. My understanding is that the personal licence was interpreted generously and that nobody was ever prosecuted for simultaneously listening to cassette copies in his and hers Vauxhall Chevettes. “Pirates” were defined as people who bought one copy of an album and sold cassette recordings to many.

The same rules apply today. Buy a CD and the BPI will turn a blind eye for your MP3 conversion; you and significant partner can listen to the same recording in different continents; it is stretching the personal licence a smidge but it is within tolerance.

The personal licence on a CD or vinyl recording, admitted that BPI and other UK rights owners struggle to define it, allows you to enjoy your music on any device. Pay once, enjoy anywhere.

46. Chaise Guevara

@ 44 Charlieman

Thanks for the info. If the current system starts being abused by companies, we need a change of law. That said, we seem to be moving away from OTT DRM, no doubt due to consumer backlash.

@46. Chaise Guevara:

I hope that Waterloo Sunset contributes some thoughts again on this thread.

Chaise: what on earth is “a site designed around facilitating copyright theft”? (I mean, apart from the fact that there is no such thing as copyright theft because theft definitionally involves permanent intention to deprive whereas copyright infringement doesn’t, and is defined in law as a completely separate offence for this reason, and the term ‘copyright theft’ being a weaselly PR coinage which frequently implies the person using it is arguing in bad faith). One which says on the front “WE FACILITATE COPYRIGHT THEFT”?

TONE: ta for that. #1 lesson is ‘don’t buy identifiable networked devices second hand from people you don’t know’. Which I hope everyone here already applies to telephones.

Charlieman: I accept that BPI has said that it won’t pursue people who format-shift for personal use, but that’s very obviously not the same as it being legal (if you punch a friend in the face and he writes it off as drunken idiocy and doesn’t go to the police, that doesn’t mean that assault is legal). It’s not acceptable to have a situation where basic property rights are dependent on a random quango continuing to play nicey-nicey.

49. Chaise Guevara

@ 48 John B

“Chaise: what on earth is “a site designed around facilitating copyright theft”? [...] One which says on the front “WE FACILITATE COPYRIGHT THEFT”?”

Of course not. One that has a business model based around facilitating the infringement of copyright, such as file-sharing sites that are almost exclusively used for copying one another’s copyrighted music files.

I don’t think we should automatically blame the host in these situation, but if the host’s business is clearly set up to exploit the market niche of copyright infringement, I think they become liable – much as it would be unreasonable to prosecute me for handling stolen goods if I bought an item at a car boot sale I had no idea was stolen, but reasonable if I had a long-standing arrangement with burglars to fence what they stole.

And ok, “copyright infringement” is probably a more accurate term, but let’s not split hairs. We both know what I mean.

50. TorquilMacneil

It would be useful to separate out the legal and the moral arguments here. There is clearly a legal case against file sharing, but is there a moral one? How can anyone have such extensive rights over property as are accorded to music and movie makers? Such rights do not extend to other property.

51. Chaise Guevara

@ 50 Torquil

To the best of my knowledge, such rights are extended to anything creative (with the scope of these rights differing by market). Think of patenting in other industries.

The obvious reason that copyright is a good thing to have, is that if you spend years writing a brilliant novel, why should you get nothing for your efforts while some random publisher can leech off you by selling your work?

@ Chaise

One that has a business model based around facilitating the infringement of copyright, such as file-sharing sites

So, we’ll arrest the pub owner for drunk and disorderly and the retailer of kitchen knives for murder, then?

What about the jemmy manufacturer?

And perhaps all their mothers as accomplices on the grounds that they gave birth to them?

53. Chaise Guevara

@ 52 pagar

I see. You’re deliberately misinterpreting what I said, despite me clarifying it, presumably out of pique.

Grow up.

@ Chaise

You’re deliberately misinterpreting what I said, despite me clarifying it

Not at all. My point was a serious one.

File sharing sites are used for sharing files. Sometimes file sharing will breach the terms and conditions under which the files were initially acquired but that is a matter between the original seller and the person doing the sharing. It is a civil matter, though the corporations are lobbying hard to get government, and the criminal law, involved (on an international basis).

In my view, the notion of intellectual property is intrinsically fraudulent and is never deserving of enforcement.

55. Chaise Guevara

@ 54 pagar

If you were making a serious point, why waste time making self-evidently stupid comparisons? I went out of my way to point out I was only talking about people exploiting an illegal market to a high and deliberate degree, so all this “sue knive-sellers for stabbings” bullshit, let alone the bit about mothers, is just a childish straw man designed to derail sensible comment.

Regarding the rest of your post: if copyright infringement is illegal, I don’t see why it should be legal to go out of your way to help people commit it. Whether or not we should do away with copyright law entirely is a different matter.

if copyright infringement is illegal, I don’t see why it should be legal to go out of your way to help people commit it.

But the point is it is not illegal, it is a civil matter.

Trading standards prosecute traders selling fake Boss clothing etc but they do so on the grounds that what they are doing is fraudulent (though it could be argued that if you buy a Rolex for £5 you can be pretty sure it’s not genuine).

Sharing a file on the internet is not (yet) illegal.

Tell it to Anton Vickerman, sentenced in August 2012 to four years imprisonment.

It depends.

58. Chaise Guevara

@ pagar

OK, if you don’t like “illegal”, what word would you prefer for an action that allows a court to demand you pay money to someone else?

“To date, Spotify has paid out over $250m in royalties to copyright holders. At the last count, the Pirate Bay has paid out nothing.”

http://news.qthemusic.com/2012/07/column_-_how_free_is_ruining_e.html

60. Shatterface

In video games, a relatively new market, there are some odd patents out there, like one reserving exclusive rights on featuring a minigame during a loading screen. It’s possible that would fail if challenged in court, but nobody wants to take the risk of haemorrhaging money during a protracted case, so we consumers are stuck staring at non-interactive loading screens for now (I think the main issue is in the US, but that’s a huge market that massively determines design). And this sort of thing is no doubt hampering art and development in more serious terms, too.

An interesting development is that when you buy a game it often isn’t actually ‘finished’: there will inevitably be fixes for bugs that you’ll need to download; and there’ll also be new levels you can purchase if you wish.

You didn’t have that with the previous generation of games where you simply handed over the money and got a disc or cartidge containing a something complete but much more limited.

And with something like Little Big Planet most of the fun is in user-generated content which, I assume, is legally owned by the original software..

@ UKL

Thanks for the link to the Anton Vickerman story, of which I was unaware.

I note it was a private prosecution but, nevertheless, it rather blows my argument out of the water.

That said, the court decision is a disgrace and, hopefully, this rogue verdict will be overturned on appeal.

62. Chaise Guevara

@ 60 Shatterface

“An interesting development is that when you buy a game it often isn’t actually ‘finished’: there will inevitably be fixes for bugs that you’ll need to download; and there’ll also be new levels you can purchase if you wish.”

Yeah, that’s quite a fascinating area at the moment. On the one hand, it’s great that companies can fix bugs after launch, and that I can download expansions to continue my adventures in Skyrim or wherever. On the other, it can feel like earlier buyers are essentially paying to be beta testers, and companies can launch half a game and then get you to pay to complete it (e.g. releasing a shooter with only four multiplayer maps, where ten years ago it would have had at least eight).

One case study is Bioware, where there was fan backlash due to Dragon Age being released with DLC available from day one, which pretty much proves that they’re trying to get you to pay twice. To be fair, Bioware apologised and made some Mass Effect 2 DLC free as a way of saying sorry. Dragon Age also provides an example of retail games coming with a one-time use code for “free” DLC, which is designed to devalue the game when sold second-hand: if you want that extra content when you buy the game used, you have to pay for it. I’m not automatically condemning either practice, it really depends on whether the game on the disc feels like a complete product (and Dragon Age does).

The one definite problem is that people whose consoles aren’t linked to the internet get shafted. I’d be interested in seeing data on how many Xboxes and PS3s are online.

63. Waterloo Sunset

WARNING: tl;dr post follows. This is one of my main areas of interest, as people can probably tell.

@37 UKL

They are allowed to use DRM to prevent copying, but they are not allowed to prevent selling on software.

IANAL. That’s true; in particular the European Court of Justice judgement (Usedsoft vs Oracle, 3rd July 2012) makes expressly clear that the second hand software market is entirely legal. It’s also worth noting that removing DRM is currently legal, as long as you don’t then use that to format shift. (That single example shows quite how outmoded the copyright laws actually are).

What’s more murky is the question of DRM that makes software unusable if it’s sold on. To the best of my knowledge, there’s no current case law on that.

@42 Charlieman

Thankfully, the BPI and most rights holders acknowledge that format shifting (ie copying for personal use) is acceptable use.

That’s a yes, but. The Musicians’ Union is in favour, but only if a small levy is applied to devices that allow copying to take place. The BPI have previously been very hardline on this issue and they shifted in 2006. They want something similar to the MU, but want it to be implemented as an exception subject to license (like we have currently with educational institutions).

I’m not necessarily hostile to the idea of a levy, but the devil is, as always, in the details. One obvious point is how much the levy is going to be. Equally though, if a levy is implemented, I think it logically follows that DRM that restricts private copying needs to be outlawed.

@48 john b

what on earth is “a site designed around facilitating copyright theft”?

Well, yeah, if we only take it as sites that go “OH HAI GUIZ WE ARE HERE TO HELP YOU PIRATE” then hardly any site would qualify. The Pirate Bay would, alongside a handful of tiny ideologically motivated sites. That’s too restrictive a definition.

If we use it to mean “a site that bases the vast bulk of its revenue stream on the sharing of copyrighted material and is fully aware of that fact”, a lot more qualify. Megaupload, for one. It beggars belief for me that Kim Dotcom wasn’t aware of what was making his money.

the term ‘copyright theft’ being a weaselly PR coinage which frequently implies the person using it is arguing in bad faith)

I avoid the term myself (it simply isn’t accurate), but exactly the same could be said of the term “filesharing”.

@50 TorquilMacneil

There is clearly a legal case against file sharing, but is there a moral one? How can anyone have such extensive rights over property as are accorded to music and movie makers? Such rights do not extend to other property.

I’d argue there is, for two main reasons.

Firstly, copyright should be there to incentivise creativity, as a benefit to society as a whole.

Secondly, content creators deserve, on moral grounds, to be financially compensated for their work. Artists should no more be expected to work for free than nurses. Because there is massive money being made from filesharing currently. It’s just not going to artists. I would morally distinguish between non-commercial and commercial copying.

Neither of those points means I’m not in favour of a massive overhaul of the current system though. While I’m not an abolitionist, I do think a complete rethink is needed. That’s not too unusual though. Even someone like Robert Levine, who is way more pro the current system then I am (I highly recommend his book Free Ride to anyone interested in these areas. It’s by far one of the most convincing and articulate pieces of writing to have been brought out by the copyright ‘traditionalists’), calls for a reduction in copyright terms.

@62 Chaise

The whole beta testing issue is interesting. It’s not so much a new development; it’s recently shifted to the console market but it’s been the case for PC gamers for years.

There are certainly games being released that aren’t ready yet. There is also some ridiculous DLC around, that really does just give you stuff that should have been in the game in the first place.

It’s complex though. I do accept that some issues with games do come up only when there’s lots of people playing them, especially multi-player games. And I’d be reluctant to try and legislate on this. The big guys would adjust. Who it would hit is the maverick bedroom single-person design studios. Realistically, that crowd simply don’t have the resources to do mass playtesting before release.

Overall, my views on these issues are constantly evolving. Which is only to be expected, we’re in mostly uncharted waters at the moment.

I think people might be interested in the M3 Blog It’s got a really diverse range of interviews with people talking about this. If people will forgive me for shameless self-promotion, I have an article on the future of the music industry up on there. (Note that I’m a lot more dubious about the widespread utility of the crowdsourcing model then I was when I wrote that). They also interview me here.

@54. pagar: “In my view, the notion of intellectual property is intrinsically fraudulent and is never deserving of enforcement.”

Let’s assume that intellectual property has no value and that I create the remedy R for disease D. Owing to the fact that intellectual property has no value, I retain the design of R to myself. Nobody else knows the recipe. I’d like to make a few bob from my recipe, into which I have invested a lot of time and money.

I can make a few cures in my lab that can treat ten people a month — I can’t publish my science to copiers because remedy R pays for everything that I do. If I licence it on free terms, I would go bust.

My lab is working on a cure for worse disease W. The science to create a solution to W depends on my income from remedy R. Disease W results in more deaths than disease D.

Unfortunately, an epidemic of disease D occurs. The question is not “should I hand over my rights” but “how do I hand over my rights”. It is a moral question: I would deliver rights to anyone who would not use them for profit. I might go bust as a consequence.

Or why not just make it easier by reforming the systems of licences and patents that have served us for the last 200 years.

Universal Declaration of Human Rights, Article 27

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Charlieman @ 63

The point about intellectual property is that it is a contradiction in terms. You cannot “own” an idea.

So whether or not you are talking about a sequence of musical notes, the juxtaposition of some words or the formula for a cancer cure, it cannot belong to you. These things existed before you thought of, or discovered them, and would have continued to exist had you never thought of them.

So they can’t be your property.

Which is not to say that, should you have an idea, you should not try to sell the resulting product and profit from it. Of course you should, and that is how the world progresses.

But you cannot legitimately prevent someone else from copying (or improving on) the idea and in the examples we have where intellectual property has been successfully protected, progress has been severely hindered.

So, in the example you give (your sole knowledge of the formula for a cure for disease D), you can choose to exploit it as you wish (of course the moral course in an epidemic would be to release the formula for mass production).

But the real danger, if there were an epidemic, would be if no one else could mass produce the vaccine because you had been allowed to patent the formula and were choosing not to produce it (or to continue to treat only ten people a month).

We have exactly that kind of situation at the moment with many prescription drugs.

67. Chaise Guevara

@ 65 pagar

“So whether or not you are talking about a sequence of musical notes, the juxtaposition of some words or the formula for a cancer cure, it cannot belong to you. These things existed before you thought of, or discovered them, and would have continued to exist had you never thought of them.

So they can’t be your property.”

By that logic, every part of a physical piece of property existed before you had anything to do with it, so you can’t own anything ever.

pagar,

So whether or not you are talking about a sequence of musical notes, the juxtaposition of some words or the formula for a cancer cure, it cannot belong to you. These things existed before you thought of, or discovered them, and would have continued to exist had you never thought of them.

Existed in what sense? Plato’s Forms?

@2. Left Outside

Try buying a book. You know the papery things with words written in them. Better yet, try a library. They lend you books for a tiny dribble of money. The article is a bit of a storm in a tea cup.

@ Chaise

By that logic, every part of a physical piece of property existed before you had anything to do with it, so you can’t own anything ever.

No.

Because you can add value to raw material (through labour)and you have the right to enjoy (to possess) the value that you add. By making bricks, for example, you add value to the clay and by building a house, you add value to the bricks.

@ UKL

Existed in what sense? Plato’s Forms?

If you like.

To take a simple example, a poet can write a killer line.

“I bring you with reverent hands
The books of my numberless dreams”

All the words used existed before he wrote them and have continued to exist afterwards. So it is ridiculous for him to claim he “owns” them, in some way, and to argue that nobody else should say, write or publish those words, in that order, in the future.

In fact I just have….

71. Chaise Guevara

@ 69 pagar

“No.

Because you can add value to raw material (through labour)and you have the right to enjoy (to possess) the value that you add. By making bricks, for example, you add value to the clay and by building a house, you add value to the bricks.”

And by assembling words in the right order, you add value to those words by turning them into something entertaining/compelling/useful.

It’s exactly the same.

Chaise, quite.

pagar,

@ UKL

Existed in what sense? Plato’s Forms?

If you like.

To take a simple example, a poet can write a killer line.

“I bring you with reverent hands
The books of my numberless dreams”

All the words used existed before he wrote them and have continued to exist afterwards.

The words existed but not in that arrangement.

The same words appear in the dictionary in this order “books bring dreams hands I my numberless of reverent the with you” but it doesn’t have quite the same ring to it, does it?

Looking from that relatively simple arrangement to the complexity of a musical arrangement or a film or some software (particularly videogames, which involve code, artwork and sound). In what sense can any of these arrangements be said to have existed before they were created?

73. Chaise Guevara

@ 71 ukliberty

I wonder if pagar would apply the same logic to market analysis reports, which could be described as “just words and numbers”, but which often also involve original research (e.g. consumer surveys) and can sell for five-figure sums. The data in those surveys all existed before the work was carried out, but the value is in the collation and interpretation of that data.

@ Chaise

And by assembling words in the right order, you add value to those words by turning them into something entertaining/compelling/useful.

It’s exactly the same.

No, it’s not.

Music, art, literature are not created in isolation- they are part of a continuum, springing from and feeding off other works and from the society in which they were created.

And although the technology behind brick making might evolve and become more efficient, a brick, whilst it might be reclaimed and used in another construction, will remain, nevertheless, a brick.

The same words appear in the dictionary in this order “books bring dreams hands I my numberless of reverent the with you” but it doesn’t have quite the same ring to it, does it?

Not in my view, but there are some literary critics who might prefer it….

What if I only change a single word, have I breached coyright then?

“I bring you with reverent hands
The books of my numberless schemes”

Have I written something new, or plagiarised Yeats?

What if I had only altered the punctuation?

One of the things about the internet is that it has tended to help artists subvert copyright restrictions allowing for innovative new work.

This, for example, is brilliant, in my view, and could not have been done without breaching copyright.

http://www.youtube.com/watch?v=WLKk00OYKhU

I wonder if pagar would apply the same logic to market analysis reports, which could be described as “just words and numbers”, but which often also involve original research (e.g. consumer surveys) and can sell for five-figure sums.

Of course, the surveyors are entitled to extract what benefit they can from the work they have done in collecting the data and there is no requirement to make it public. Nor is there that requirement on any writer.

What they can’t do is copyright the questions and prohibit another company from asking them.

76. Chaise Guevara

@ 74 pagar

“Music, art, literature are not created in isolation- they are part of a continuum, springing from and feeding off other works and from the society in which they were created.

And although the technology behind brick making might evolve and become more efficient, a brick, whilst it might be reclaimed and used in another construction, will remain, nevertheless, a brick. ”

And a poem will remain, nevertheless, a poem. You’re applying completely different, arbitrary standards: adding value matters for physical objects but not intellectual property; the “continuum” thing matters for intellectual property but not for physical objects.

“Of course, the surveyors are entitled to extract what benefit they can from the work they have done in collecting the data and there is no requirement to make it public. Nor is there that requirement on any writer.”

Difficult to extract value without making it public. You can’t just say “Country X is likely to see strong growth in industry Y” but not explain why you know that. Or rather, you can, but there’s little reason for anyone to believe you, and your expensive surveys have not much more value than someone who’s making it up as they go along.

Plus, whatever you DO make public can be instantly and legally shared between potential clients. So good luck making any money off that.

“What they can’t do is copyright the questions and prohibit another company from asking them.”

Stop dodging the point. Should they be able to copyright the data?

People may be interested in Everything is a Remix.

78. Chaise Guevara

@ 74 pagar

“What if I only change a single word, have I breached coyright then?”

The fact that copyright law, like many laws, leads to grey areas, does not demonstrate that it is a bad idea.

“Have I written something new, or plagiarised Yeats?”

That’s probably too short to count as plagiarism, and I’m guessing that Yeats is out of copyright anyway. But if you print up a copy of a Harry Potter book with the word “wand” changed to “magic stick” throughout, that would be plagiarism.

Why should you be able to profit off someone else’s hard work, in such a way that it makes it difficult if not impossible for them to make a profit themselves?

I also think you’re blinded by ideology here: your proposals would have a devastating effect on the production of music and literature.

pagar,

Have I written something new, or plagiarised Yeats?

What if I had only altered the punctuation?

I don’t know. You seem to have side-stepped the point into a gray area. Let’s talk about the obvious. Someone writes a novel – it takes him a year, say. They send it to a publisher. The publisher commercially exploits the novel without giving the author any money. You are saying that’s OK. Or the novel appears on the internet and is widely copied but again the author gets nothing. That’s OK.

James Dyson invents a new vacuum cleaning technology, or ARM designs a new chip, and these inventions and designs are immediately copied and commercially exploited and the inventors are not compensated.

Or Warner Bros. make a $100m movie or Rockstar a $10m game, which both find their way on to the internet, and neither company gets any money.

Or GlaxoSmithKline spend $billions on developing a new medicine, which is copied and commercially exploited by someone else.

That’s all OK, because numbers, words, colours, musical notes and chemicals already “exist”?

@ UKL

Yes the TED stuff is brilliant. This is a great exposition on IP in the internet age.

http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html

@ Chaise

That’s all OK, because numbers, words, colours, musical notes and chemicals already “exist”?

Correct.

Supposing, for example, someone discovers that cold fusion occurs when Dettol is mixed with HP sauce (original recipe).

Would the world be better served if he patented the formula and spent the next twenty years trying to develop it himself or would progress be quicker if he made the information available to all manufacturers to compete in developing the best DHPS generator?

And would it then help or hinder progress if the company who devised a working generator patented the design and prevented their competitors from building similar generators?

There is a real historical example of this happening and, when James Watt took out patents on the basic design of the steam engine, he found they didn’t help him much.

“Ironically, not only did Watt use the patent system as a legal cudgel with which to smash competition, but his own efforts at developing a superior steam engine were hindered by the very same patent system he used to keep competitors at bay.

An important limitation of the original Newcomen engine was its inability to deliver a steady rotary motion. The most convenient solution, involving the combined use of the crank and a flywheel, relied on a method patented in 1780 by James Pickard, which prevented Watt from using it. Ironically, Watt also made various attempts at efficiently transforming reciprocating into rotary motion, reaching, apparently, the same solution as Pickard.

But the existence of a patent forced him to contrive an alternative less efficient mechanical device, the “sun and planet” gear. It was only in 1794, after the expiration of Pickard’s patent that Boulton and Watt adopted the economically and technically superior crank.”

http://www.dklevine.com/papers/ip.ch.1.m1004.pdf

As a result of the above, the 18th century technological revolution was significantly delayed.

But the question you ask whether a lack of IP protection is equitable – to companies who have invested in research and to individuals, who have had their work copied.

Let’s take music as an example because, in music, there has been no effective protection of copyright since technology made recording possible and in the internet age it is ludicrous to try to pretend that IP rights can be enforced.

Yet, even without protection, good musicians can still earn an excellent living and it is the big corporations that have lost out. We have arguably never had a more interesting and vibrant music scene since the advent of file sharing etc – low barriers to entry for new artists and established bands producing live music rather than relying on revenue from recordings.

Do we really want to go back to the days when the record companies devised and manufactured the “next big thing”?

But what about the lack of incentive for companies to develop new products if the profits cannot be protected? Would the new wonder drug that cures cancer be discovered at all if the results of research could not be patented and the company concerned reap the rewards?

I would argue that it would.

And is it ever reasonable that the patent holder of a new drug allows millions to die whilst they price it for the treatment of the very few that can afford it?

Please note that I have ruthlessly plagiarised the above argument

@74. pagar: “Of course, the surveyors are entitled to extract what benefit they can from the work they have done in collecting the data and there is no requirement to make it public. Nor is there that requirement on any writer.”

Society benefits from openness. Intellectual property rights allow creators to publish their ideas and those ideas create new opportunities.

We create more wealth or opportunity when things are published. If I pay £20 for a copyrighted report, I save a lot of time and money that can be used to create something new. When company X pays a patent fee to company Y, company X is not compelled to buy company Y’s intellectual property; they can choose to do something else, so when company X pays for IP they expect to make a profit from it.

Open source software does not always permit free use in commercial products. Most licences require that commercial users provide source code which contributes to the general pool of knowledge.

82. Just Visiting

> Open source software does not always permit free use in commercial products.

Interesting when we get on to IP in the world of software.

The europeans don’t, but the Americans do, allow patenting of software concepts.

Hence Apple taking Samsung to court in various countries and losing mostly, over things that you and are would say are so obvious.

With $B claims and counter-claims. Phew, that’s big money.

The US lawyers love the court cases if course!

But there’s a small but growing voice, that wants the US to stop allowing software patents: that it is stifling genuine innovation.

Some of the offendors are dubbed Patent Trolls !

@ JV

Hence Apple taking Samsung to court in various countries and losing mostly

From UKL’s link

Steve Jobs 1996- “we have always been shameless about stealing great ideas”

Steve Jobs 2010- “I’m going to destroy Android because it’s a stolen product”

Says it all really.

84. Chaise Guevara

@ 80 JV

“Hence Apple taking Samsung to court in various countries and losing mostly, over things that you and are would say are so obvious.

With $B claims and counter-claims. Phew, that’s big money.

The US lawyers love the court cases if course!”

Bang on the money. I’m defending IP rights here, but I don’t deny that they’re misapplied. And one problem seems to be that America grants pretty specious patents on the assumption that any issues can be worked out in court. Pure complacency, in other words, in a form that benefits the big boys and hurts innovative start-ups. People don’t develop ideas because they’re scared of being sued.

I mean, pagar and I have our differences on this issue. But I believe that we both think our preferred system would support innovation. If your patent system kills innovation, you have a fucked-up patent system.

The more artists, writers, poets etc self publish their work and sell it via their own websites, the better imo. Many music artists already eshchew record label contracts and major company distribution, and sell direct to fan.

If you’re worried about T&Cs of music retailers, try Bandcamp for starters. That site includes a digital download with any CD purchase, so format transfer isn’t an issue. And it’s still better for the artist, because they keep most of the money from the sale (instead of a piddling royalty rate which would be the case if they were signed to a record label).

But you are always only ever paying for an experience when you buy art. You don’t, and never will, own the art itself. Even when you’ve pirated something, you don’t own it.

Think about it this way: if you sneak into the cinema and watch a film for free, you wouldn’t own the film any more than you own it if you download it illegally from the internet and watch it on your PC. Just because the latter scenario makes it possible for you to have that stolen experience as many times as you like, probably without detection, it doesn’t mean you own the film. Don’t fool yourself that pirating is somehow better or more moral than buying from mainstream companies.

In terms of IP, a few people have the wrong idea about it, it seems. If you buy a car, you can indeed drive it where you want, but if you built an identical car and passed it off as your own idea, that would be rather different wouldn’t it? It’s just vastly more difficult to reproduce a car than it is to reproduce an mp3, so we don’t think about it.

86. DAVIDJOHNREA

You should be really afraid of KROLL.

RBS acts like a criminal enterprises.

We are insiders exposing the next big banking scandal involving private banking fraud, asset hiding, black money,money laundering + tax evasion.

See + keep up to date with our library of Press Releases until we break out this story in the headlines:

http://thewhistleblowers.wordpress.com/

87. Derek Hattons Tailor

One of the legal tests of “ownership” is the ability to sell or otherwise dispose of an asset. Hence a house is not owned until the mortage is paid off, as the bank won’t allow you to sell it without their permission. The millions who think of themselves as “homeowners” are deluding themselves.
You can, however, sell or giveaway a CD, DVD or book when you’ve finished with it, but you cannot legally do that with an online electronic purchase. I’m getting a kindle for christmas because my eyesight is crap and you can increase the text size, no other reason.


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