Credulous about copyright

datePosted on 16:02, July 12th, 2009 by Lew

This morning’s Insight documentary on NatRad is an example of what happens when journalists who know almost nothing about a given topic are tasked with putting together an in-depth, large-scale piece of investigative journalism on that topic. is based on the misleading assertion that copyright grants its owner an inherent right to an income.

Kim Griggs’ journalistic technique is fine – she’s talked to the major stakeholders, given both sides of the story and generally done very well at covering the issues. But she’s labouring under a delusion about what copyright grants. Specifically, she says:

Put simply, copyright is a bundle of rights which exist once an idea is given concrete form. That form can be a song, a film, a book, a cartoon, a map, or even an email, and the copyright owner has the right to decide how it’s used and to get paid for it.

My emphasis. But there is no copyright law anywhere which grants creators a right to get paid – all they have is the right to control the exploitation of their work, and if they can turn that into payment, then good on them. In the documentary John Key also makes this error, conflating “compensation and recognition” into the right to get paid.

It’s this false idea – that copyright owners have an inherent right to be paid regardless of how broken their business model might be – which prevents the development of better business models which mean they don’t need to treat their customers like the enemy in order to make money. Even the copyright lobby accepts this; they’re just so far behind the curve that their old models have failed before their new models are even off the drawing board. Of course, if they want to keep applying the stick, rather than employing the carrot, that’s their right.

The content owners have pulled a snowjob on Kim Griggs, which It is unfortunate, because there’s already too much uncertainty and misinformation on this matter, without more confusion being added by people who should be clarifying the issues.

Edit: Kim Griggs has emailed me to outline her extensive experience and expertise in the copyright industry in NZ, and Pippa makes many of the same points in a comment. On that basis I have apologised to Kim for the statement above about her expertise, and for suggestion she was fooled by the copyright lobby.

Nevertheless, my broader criticism stands: the statement I highlighted is wrong in fact and is unhelpful to the cause of reasoned debate because it blurs issues around economic rights, moral rights, contract law and industry practice into a blank statement that copyright == money.

I’ve offered Kim an opportunity to put her case here, if she chooses.

L

30 Responses to “Credulous about copyright”

  1. Anita on July 12th, 2009 at 17:42

    Well if it’s not about the money, then what would be the point? :)

  2. Keir on July 12th, 2009 at 17:47

    My emphasis. But there is no copyright law anywhere which grants creators a right to get paid – all they have is the right to control the exploitation of their work, and if they can turn that into payment, then good on them. In the documentary John Key also makes this error, conflating “compensation and recognition” into the right to get paid.

    They have the right to get paid for exploitation, no? I mean, sure, they don’t have the right to get paid if no one wants to exploit their work, but that’s like saying `you don’t have the right to be paid for your work’, which is trivially true if someone is just randomly digging holes. But that’s not a common occurrence, so it isn’t that important.

    What is a common occurrence is exploitation without payment, which seems to me to be what she is talking about. All the stuff about `broken business models’ etc doesn’t change that; a fair day’s pay for a fair day’s work. What is happening is not that people refuse to buy & don’t use what’s for sale; rather they refuse to buy & then use the product anyway. And the rights-holder should be compensated in that case, and often isn’t.

  3. Anita on July 12th, 2009 at 17:54

    Keir,

    Copyright gives the owner the right to set all the terms of use, that’s far broader than the price.

    Let’s say I write a stunning piece of music and say “this may be used as part of anti-GE ads, but it may not be used for any other purpose” then people can’t pay me and use it to advertise cars.

  4. Idiot/Savant on July 12th, 2009 at 18:04

    What is a common occurrence is exploitation without payment

    Which is a consequence of a failure to respect the right of control, not of any right to get paid. That’s between you and your publisher, and nothing to do with the law. Of course, if you’re not paid, you can always say “no”.

    And OTOH, given that exploitation has traditionally been in exchange for cash, its a bit hair-splitty.

  5. Lew on July 12th, 2009 at 18:05

    Keir,

    They have the right to get paid for exploitation, no?

    They have the right to get paid for exploitation if they can. But it’s the same as the buggy-whip makers: they can’t.

    What is happening is not that people refuse to buy & don’t use what’s for sale; rather they refuse to buy & then use the product anyway. And the rights-holder should be compensated in that case, and often isn’t.

    By whom should they be compensated? It’s not the job of government to prop up broken business models, and it’s bad policy to constrain legitimate technologies on the grounds that one pressure-group is unable to keep with the times.

    L

  6. Keir on July 12th, 2009 at 18:09

    Just because you have broader rights, doesn’t mean you don’t have more specific rights, viz. the right to get money in return for use of the fruits of your labour if that’s what your ask for. (Which is I think what Griggs is talking about, given that not getting money in return for use of the fruits of labour is a reasonably common proposition today.

    Let’s say I write a stunning piece of music and say “this may be used as part of anti-GE ads, but it may not be used for any other purpose” then people can’t pay me and use it to advertise cars.

    Um, actually under certain circumstances they can do quite a lot — not the specific example, but under US (frex, can’t remember the NZ law) compulsory licensing they can just pay up and do certain things.

    They have the right to get paid for exploitation if they can. But it’s the same as the buggy-whip makers: they can’t.

    How does that differ from `But it’s the same as the coal miners: they can’t’, or `it’s the same as women: they can’t’? The reason buggy-whip makers didn’t get paid was that no-one wanted buggy whips; that is not the case for Lily Allen’s music.

  7. Lew on July 12th, 2009 at 18:09

    Right, I/S also makes the source of the problem clearer – content-creators ought to insist on being paid royalties by their content-owners regardless of whether end-users pay for content. That’s the point of signing your copyrights over to a publisher: they gatekeep. Publishers are failing at their gatekeeping job and then crying poverty on behalf of the creators who they ought to be paying regardless.

    The whole problem is a moral hazard: those who have the ability to fix the business model (publishers) are not those most harmed by it (creators).

    L

  8. Lew on July 12th, 2009 at 18:16

    Keir,

    With respect, I think Griggs is just reading from the factsheet given her by the content owners. It’s a common refrain.

    But it’s the same as the coal miners; they can’t. Come off it, would you, and stop with the anti-worker bullshit? The reason buggy-whip makers didn’t get paid was that no-one wanted buggy whips; that is not the case for Lily Allen’s music.

    It’s not at all anti-worker. If you want to look at it in that way, the ‘workers’ in this case are not having their interests adequately protected by the ‘bosses’ the people to which they have sold the rights to their content in exchange for the responsibility of protecting those rights.

    L

  9. Keir on July 12th, 2009 at 18:23

    (Where did that nasty word `anti-worker’ come form? I never said that…)

    It’s not at all anti-worker. If you want to look at it in that way, the ‘workers’ in this case are not having their interests adequately protected by the ‘bosses’ the people to which they have sold the rights to their content in exchange for the responsibility of protecting those rights.

    We-ell, no, the point was that `I am going to expropriate the fruits of you labour because I can’ is the justification of bosses the world over, and it isn’t actually good enough — you wouldn’t take as an argument about pay equity, or miner’s pay, so why is it A-OK in the case of IP — and note that file sharers don’t respect independent creator/publisher stuff any more than they do the majors.

  10. Lew on July 12th, 2009 at 19:39

    Keir,

    (Where did that nasty word `anti-worker’ come form? I never said that…)

    Well, yeah, it’s not the sort of spin I’d normally have put on the issue either, but it was still in your comment when I read it.

    We-ell, no, the point was that `I am going to expropriate the fruits of you labour because I can’ is the justification of bosses the world over, and it isn’t actually good enough — you wouldn’t take as an argument about pay equity, or miner’s pay, so why is it A-OK in the case of IP

    In cases where ‘bosses’ are exploiting ‘workers’ to an unacceptable extent, governments regulate that relationship – not the relationship between the bosses and the end-users of the product.

    To employ an analogy, if Spacely Sprockets decided to store its sprockets someplace where people could just zoom up in a flying car and take them, a government would be more inclined to require Cosmo Spacely to better protect his product than to allow him to simply cut George Jetson’s per-sprocket remuneration and make up the shortfall.

    L

  11. Quoth the Raven on July 12th, 2009 at 19:48

    Wonder why you don’t see more hybrid cars? Here’s an interesting article: Intellectual Property vs. Global Warming.

  12. Keir on July 12th, 2009 at 19:58

    But the point remains: `I want Lily Allen’s labour, but I don’t want to pay her’ is bollocks. And that is what people are arguing against, because that is what is happening. Lily Allen has the right to be paid for her work. (And if you think the solution is to empower Lily Allen vs. Capitol Records, hell yes, but that’s not what’s being proposed, as a rule.)

    (Whereas the buggy-whip analogy implies that you don’t want Lily Allen’s labour, in which case, no you shouldn’t have to pay her. But that’s not the case at all, so…)

  13. Geoff on July 12th, 2009 at 20:18

    Thankfully we still have Radio NZ able to dissect and debate these sorts of issues …can you imagine this debate on TVNZ ???

  14. Lew on July 12th, 2009 at 20:27

    Keir,

    But the point remains: `I want Lily Allen’s labour, but I don’t want to pay her’ is bollocks. And that is what people are arguing against, because that is what is happening. Lily Allen has the right to be paid for her work. (And if you think the solution is to empower Lily Allen vs. Capitol Records, hell yes, but that’s not what’s being proposed, as a rule.)

    Indeed, but it should be, as only Capitol Records have the ability to change the state of affairs here. Lily Allen can’t up and invent her own business model as Trent Reznor and Radiohead did (at least until she’s off-contract). But Capitol can do so any time they like – they just need to be properly incentivised to do so.

    It’s mathematically impossible to prevent filesharing. Can’t be done. That’s not a value judgement, that’s just an objective fact. Anyone who tries to do so instead of adapting is on a hiding to nothing in the long run, as their customers and then their content creators abandon them.

    L

  15. Keir on July 13th, 2009 at 13:58

    It’s mathematically impossible to prevent filesharing. Can’t be done. That’s not a value judgement, that’s just an objective fact. Anyone who tries to do so instead of adapting is on a hiding to nothing in the long run, as their customers and then their content creators abandon them.

    Pleased to know a back hoe is a mathematical impossibility… (I know what you mean, but if you are going to start saying things like `mathematically impossible’ I am going to start being a bitch about terms & in fact it is a value judgment, tho one I agree with you on.)

  16. Lew on July 13th, 2009 at 14:18

    Keir,

    A backhoe can’t prevent filesharing! Anyway, sarcasm is just going to earn you EFF axioms from me – the internet interprets censorship as damage and routes around it; Bob is Carol; if you can see or hear it, you can record and distribute it; etc :)

    But I apologise if I’ve assumed too little understanding on your part.

    L

  17. Pippa on July 14th, 2009 at 17:18

    You have the accused the wrong journalist of knowing “almost nothing” about this particular subject. Before joining RNZ, as a freelance journalist and an advocate for them, Kim Griggs has done more than most to teach freelancers about the importance of protecting their copyright (so they can have a business model i.e. eat). She has addressed conferences on the subject, made submissions on the Copyright Act reviews and was until recently on the Copyright Licensing Ltd. She is probably the best placed journalist to put together a large scale, in-depth piece of investigative journalism on copyright.
    Personally, I wonder what’s the point of having a property right if you can’t realize some income from it? Oh, I know some people might be happy with being recognised as the originator of a work but it is a perfectly good business model until people rip off the copyright holder. And they do that because it is (largely) an intangible thing – an idea. Yet ideas are surely what we should prize the most – and the people who have them and quite possibly could have more of if they could make a living from their work.

  18. Keir Leslie on July 14th, 2009 at 17:53

    A backhoe can’t prevent filesharing! Anyway, sarcasm is just going to earn you EFF axioms from me – the internet interprets censorship as damage and routes around it; Bob is Carol; if you can see or hear it, you can record and distribute it; etc :)

    Backhoes, the nemesis of the internet ™. Enough backhoes and there will be no internet worth speaking of. (Iain M Banks has a great passage on this — the problem with the land of infinite fun is that you have to remember where your off switch is…)

    There are things which are mathematically impossible in computing, & people sometimes claim they can do them, so I think it is important to keep `impossible’ & `mathematically impossible’ separate.

    But of course, you are right, preventing filesharing is impossible in the way that making everyone wear blue is impossible. All you can do is mitigate the impact — which is possible. But one peeve of mine is people saying `x is just inevitable (or logically determined)’ or whatever, when quite often it isn’t.

  19. Lew on July 14th, 2009 at 19:11

    Pippa,

    Kim has emailed me to make the same point. I’m awaiting a reply from her before I amend the post.

    Personally, I wonder what’s the point of having a property right if you can’t realize some income from it?

    There are plenty of uses for property rights other than the extraction of income, and there’s plenty of people who hold copyright to interesting, important or valuable works from which they don’t derive an income. The entire free software industry is an example, with its products used by tens of millions of people daily without a single cent of royalty or licensing money changing hands. The blogosphere is another.

    This is certainly not to argue that copyright holders shouldn’t want to make a living or should feel guilty for doing so, not at all. Just that the the two are not intrinsically linked.

    Oh, I know some people might be happy with being recognised as the originator of a work but it is a perfectly good business model until people rip off the copyright holder. And they do that because it is (largely) an intangible thing – an idea. Yet ideas are surely what we should prize the most – and the people who have them and quite possibly could have more of if they could make a living from their work.

    Filesharing is not the ‘ripping off’ of ideas – that’s plagiarism. Filesharing in the conventional sense in which it’s discussed, with reference to music, film, etc, is ‘ripping off’ of media – fixed expressions or productions of ideas. I agree those are important and wonderful too, and I think content producers should get paid for their work. But it’s not the fans, or the filesharers who are preventing that.

    L

  20. Lew on July 14th, 2009 at 19:32

    Keir,

    Perhaps I didn’t assume too much understanding of how this all works after all.

    There are things which are mathematically impossible in computing, & people sometimes claim they can do them, so I think it is important to keep `impossible’ & `mathematically impossible’ separate.

    Nope, it’s actually mathematically impossible to prevent filesharing (of media, etc.) without preventing the sharing of other content as well.

    The rationale for this is fairly simple.

    If I can transmit one kind of data from one computer to another, I can equally do so with any other kind of data: the network doesn’t care, and even if it did care, due to encryption it can’t know: it’s all ones and zeroes. So any content which can be converted to zeroes and ones (text, images, audio, any combination, etc) can be made into files and transmitted between computers just as easily as any other kind.

    Because of this, efforts were channeled into preventing the conversion of media into zeroes and ones. The problem is that the nature of media is such that if you can use it for its intended purpose (watching it, listening to it, etc) then you can convert it to zeroes and ones. This problem is often expressed as ‘Bob is Carol’ because the person for whom the content is intended and the person from whom it is supposed to be protected are the same person using the same mathematical means to access the content. Cory Doctorow explains it much better than I do.

    But of course, you are right, preventing filesharing is impossible in the way that making everyone wear blue is impossible. All you can do is mitigate the impact — which is possible. But one peeve of mine is people saying `x is just inevitable (or logically determined)’ or whatever, when quite often it isn’t.

    Well, yes, it’s impossible in that way as well. But that’s largely irrelevant when you consider that, without outlawing computing which can be programmed to do what their users want them to do, it’s impossible at the mathematical level as well.

    L

  21. Pippa on July 14th, 2009 at 23:11

    I think you may be hopelessly confused. For a start plagiarism is the unauthorized use or close imitation of the language and thoughts of another author and the representation of them as one’s own original work. I’m quite sure file sharing in the sense we are talking here is not that. It would only become plagiarism if people then represented large parts of a downloaded movie or music as their own.
    We are definitely talking about copyright and theft of it.
    You say quite categorically that file sharing is “ripping off of media” [i.e. breach of copyright or theft] and that producers of these “fixed expressions and productions” should get paid. I couldn’t agree more.
    So, just tell me how file sharers and fans are not ripping off [i.e. breaching the copyright of or stealing from] the producers when they don’t pay for the productions they download and share?
    Just because you have the means to file share (rip off) doesn’t make it right, no more than it makes it right for a thief to steal a car or break into a house because they have a jemmy or a balaclava.
    You can twist yourself into knots and try to justify it all you like but if a copyright holder wants an income off their efforts they have every right to expect others to respect that. And they have every right to expect the lawmakers and enforcers to protect those property rights as they would for any other theft.
    I begin to wonder whether much of this argument comes from people who have never produced anything original in their lives. People who have know the hard work that goes into it and how galling it is when others freeload.

  22. Anita on July 15th, 2009 at 06:32

    I think it’s still plagiarism whether or not it’s authorised – isn’t the test whether you pretend to be the author of work when you are not? and the offence is toward your audience not the copyright holder?

    Pippa,

    The right to set a term for use which is payment (e.g. “you can use this song for your car and if you pay me $40,000″) is important, but it is not the only thing protected by copyright, nor the only important thing. The right to be acknowledged as the author, for example, is very important to many.

    When copyright discussions focus only on the right to be paid they feed into the myth that everything is for sale, and that any use of a work (no matter how contrary to the author’s wishes) is permitted as long as the user pays the price.

  23. Lew on July 15th, 2009 at 07:59

    Pippa,

    The distinction of plagiarism is that it is the misappropriation of ideas rather than things. On this basis filesharing (misappropriation of files) is not plagiarism. I never said filesharing was plagiarism; I explicitly said it wasn’t.

    So, just tell me how file sharers and fans are not ripping off [i.e. breaching the copyright of or stealing from] the producers when they don’t pay for the productions they download and share?

    They are breaching copyright but not stealing – filesharing isn’t theft because it isn’t zero-sum. the fact that I copy your file doesn’t mean you no longer have the file; we both have a copy. A content creator doesn’t lack the file; in your argument they lack the royalty which they could have been paid if the file had been purchased legitimately. But the filesharer didn’t take the royalty, they only took the file, so nobody has stolen anything except in a rhetorical sense. In no jurisdiction anywhere in the world are copyright infringers charged with theft, in the sense that someone would if they stole a CD from a shop.

    The line that copyright is theft is a handy piece of argument, but it relies on this abstraction from the piece of content to some counterfactual amount of money which it represents. This ignores the fact that not every file downloaded is a file which would have otherwise been bought legitimately and a royalty paid. The reason people are choosing to download files rather than buy them is mainly because content owners make it hard for them to buy content; the barrier is convenience more than money. Schemes where content owners have made it easy for people to buy digital content have been enthusiastically embraced, even where the cost of the content isn’t much less and the quality is much worse (such as iTunes).

    The silent third-party in this discussion, which centres on the end-user and the content creator, is the content owner. They ought to be protecting their property rights by the best means available. I’m not arguing they don’t have the right to protect them via legal means – I’m arguing that there are better ways.

    I’m also not arguing that filesharing is right – I’m arguing that it’s inevitable and impossible to prevent under the current arrangements where content owners make it harder for their fans to access their content by legitimate means than by other means which are available.

    You can twist yourself into knots and try to justify it all you like but if a copyright holder wants an income off their efforts they have every right to expect others to respect that. And they have every right to expect the lawmakers and enforcers to protect those property rights as they would for any other theft.

    No twisting; as I said, copyright owners’ rights should be respected. But that doesn’t follow to the rest of your comment, since copyright infringement is not theft, and since copyright is different to other property rights (you might argue it shouldn’t be, but that’s irrelevant in the face of the fact that it is different).

    Content owners do have the right to expect the authorities to protect their rights to the extent which other copyrights are protected, but the problem is that most copyright protection proposals contain provisions in law which go much further than those which apply in protection of other similarly-valuable forms of property, such as the requirement of surveillance by common carriers (in order to detect breaches) or the requirement of suspension of service on mere suspicion of breach. Those are rights which have never been granted other right holders. It’s particularly stupid that such approaches are being proposed when the solution to the filesharing problem (or at least the revenue model behind it) is solvable by the content owners (and nobody else).

    I begin to wonder whether much of this argument comes from people who have never produced anything original in their lives. People who have know the hard work that goes into it and how galling it is when others freeload.

    Perhaps it does, but not from me. A postproduction leak and unauthorised broadcasts nuked any licensing prospects for a project I co-wrote, produced, directed and generally spent months of my life on. I write for a living.

    L

  24. Keir on July 15th, 2009 at 13:50

    Well, yes, it’s impossible in that way as well. But that’s largely irrelevant when you consider that, without outlawing computing which can be programmed to do what their users want them to do, it’s impossible at the mathematical level as well.

    Yes; without oulawing computing*; it is not axiomatic that we must have networked Turing Machines. (And in fact, it can be pretty trivially shown that filesharing is preventable without any mathematical impossibilities —let the sun go supernova, and then… Whereas even if the sun goes supernova it will still be impossible to comprehensively order the irrational numbers.)

    Mathematical impossibility is very, very strong. Some things actually are mathematically impossible, like writing a program to tell if any given program will halt. But stopping filesharing really really isn’t one of them.

    * Strictly, without outlawing networked computers; if every computer is surrounded by fresh air & a Faraday cage…

  25. Lew on July 15th, 2009 at 14:02

    Keir, if you have to resort to such absurdity as the heat-death of the sun or the banning of all computers and networks to prove your point, then I suppose you’re welcome to it.

    Preventing filesharing at the cryptographic level, that is, preventing Carol from accessing content intended for Bob when Carol is Bob, is in fact a mathematical impossibility; that’s my point.

    L

  26. Keir on July 15th, 2009 at 17:40

    Preventing filesharing at the cryptographic level, that is, preventing Carol from accessing content intended for Bob when Carol is Bob, is in fact a mathematical impossibility; that’s my point.

    But that’s not what you said. You said something which just isn’t true; preventing file sharing isn’t mathematically impossible without positing various other axioms like: we must have computers, they must be networked, etc. etc. Some things really are mathematically impossible & we should reserve that terminology for things which truly are, not for things which are merely absurdly difficult.

    Keir, if you have to resort to such absurdity as the heat-death of the sun or the banning of all computers and networks to prove your point, then I suppose you’re welcome to it.

    Again, not mathematically absurd. You’re the one that decided to make the strong claim; either defend it using the standard rules for mathematical impossibility or don’t, but don’t pretend that it’s cheating to bring up mathematically possible physical absurdities as a counter-example; they are perfectly legit in maths. It’s intellectual passing off to do so; you are using the prestige of maths to say x, when really maths says x iff a b c are met.

  27. Lew on July 15th, 2009 at 19:22

    Keir,

    To continue to flog what may be a dead horse, without computers, there can be no filesharing as customarily defined; likewise, if the heat-death of the sun takes place and engulfs the universe, filesharing (as customarily defined) is impossible (there being no computers is one of many things which make it so).

    Nevertheless, in the interest of not continuing to defend such a position I shall reform the statement to the extent necessary to render it valid; that is, the statement you quoted above (or something much like it). You can keep your heat-death, backhoes, faraday-cage-making-and-installing pixies and mathematical impossibilities, up there on their lofty heights.

    There is a certain irony in the turnabout; me having pulled someone up on an important but obscure point of fact in the OP (and then you having defended that point). Details matter, terminology matters; my overall argument stands but I accept your point.

    L

  28. Keir on July 17th, 2009 at 12:15

    There is a certain irony in the turnabout; me having pulled someone up on an important but obscure point of fact in the OP (and then you having defended that point). Details matter, terminology matters; my overall argument stands but I accept your point.

    Comity!

  29. Geoff on July 21st, 2009 at 21:36

    Kim Griggs – who she ?

  30. Lew on July 21st, 2009 at 22:10

    Geoff, she’s a freelance journalist, writer and advocate for other freelance journalists.

    L

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