Last week in LAPIS we tackled the somewhat controversial topics of copyright and intellectual property laws. While the class conversation was great, I think as budding Information Professionals who support open access, it’s easy to get black and white over something that is a pretty gray issue. I’ll preface this by saying that like most people, I’ve pirated items. Although I have a Spotify subscription I’ve pirated music, torrented expensive books instead of paying full price, and as someone who has enjoyed writing fanfiction for years, used copyrighted characters in crazy fictional scenarios of my own choosing. However, while for some the issue of piracy and copyright can seem a cut and dry issue, I think it’s really very important to look at the arguments for both sides with an objective mind. With copyright and intellectual property issues, people tend to jump back and forth between arguments based on morals and those based on the law. So, instead of talking about how things should possibly be, I’m focusing in this post more on how and why things are the way they are.
When asked if artistic creators should be able to protect their works in some way, most would say “Duh, yeah, of course!” Morally, it seems incredibly straightforward. You make something, it’s yours. You have the right to exercise control over that work, and Jimmy from down the hall can’t just wake up one day and decide to snatch it. But the question is, how do we best deal with the issue of this ownership? Through copyright, we say to the creators, “Hey, you have the right to determine where your stuff is published, and who is and is not allowed to make copies.” Copyright is a solution to a really complicated moral and legal problem. How to give creators control over their own output without violating or unnecessarily limiting the autonomy of anyone else.
The creator of a work becomes its owner by default, and thus, has full rights concerning what is done with that work. If they choose to transfer those rights to another party, that is their choice – a choice I don’t believe should be taken away and violated arbitrarily by third parties, especially if for profit. Whether they want to sell, license, loan, or give away for free their property is their right as a content creator.
But by sharing I’m basically promoting the artist anyway, what’s the big deal?
Okay, sure, yes. I agree that in some ways piracy and file sharing can contribute toward the marketing of a product, but such an act doesn’t change the fact that someone is violating the terms of the agreement. You are infringing on copyright. Whether or not you have a “good reason” or other post hoc rationalization doesn’t change this point. Also, when you think about it, this is really quite a self-serving view. Assuming you shouldn’t have to pay because other people probably will, which doesn’t make piracy sound very altruistic, freedom-fightery, or “for the greater good.”
But I don’t care. It’s out there, it should be free. What does a tiny bit of money matter to these giant labels and corporations, anyway?
Well, we live in a capitalistic society and whether or not you think that’s totally cool (spoiler alert: I don’t), isn’t actually the point of the argument. We don’t live in a sweet utopian paradise where everyone is on equal footing and can get everything they want at no cost. Copyright doesn’t exist to beef up big companies to beat up on the poor “little guy,” and arguing as such with emotion is pretty disingenuous and unhelpful. Content is stolen or copied not only from big time artists, but from developers, writers, and backyard underground artists. Copyright laws were designed with the intention to protect these people who are often the lowest paid workers. I write original fiction and post it online because I enjoy creating content for fun, but also in part because I know that I’m promised control over that work the moment I write it. What I’ve written belongs to me, all thanks to copyright. Regardless of whether the artist is a multimillionaire or your best friend living in her mom’s basement, they have the right to distribute and choose to profit from distributing copies of their own work. An unlicensed third party does not. Are you stealing her property? No, but you are wrongfully taking away her exclusivity. Stephanie Vardavas, Former Assistant General Counsel for MLB and Nike brought this up in an answer about the question of intellectual property on the social answers site, Quora:
“In asserting that right [of exclusivity] yourself, without consent of the inventor, you are misappropriating it and depriving the inventor of her exclusive right to control the invention for a fixed period of time.”
But it’s not theft. This isn’t a crime.
True. On the flip side, those who believe that piracy isn’t truly theft (as defined by the law) bring up a good point that copying information isn’t technically the same act of removing someone’s possessions. One is more obviously stealing, while the other could be defined as sharing, which doesn’t necessarily cause measurable harm to an individual or company. Of course, this really depends on how you define “harm.” Legally, no harm is done, but I would also understand an artist feeling slighted by the unauthorized sharing or usage of their work, because that’s exactly what’s happening. And the claim is that what one does by making an unauthorized copy is deprive everyone in the value chain of distribution a potential sale and potential income. Whether or not people should consider these copies potential sales, however, is still up for dispute. I tend to agree that artists lose out when people make unauthorized copies, however, I think it’s often crazy when large companies to try and claim back damages based on every single one of these proposed lost sales without taking into account the probability that the consumer would actually buy an authorized copy in the first place and the lowest actual sale price available to the consumer via other online sales hubs. So yes, piracy isn’t theft, but copyright infringement is a crime. In the US, under the statues of 18 USC 2319 and 17 USC 506, to be exact.
There are artists and creators out there who are open to sharing their works. That’s how it should be.
That’s awesome! That’s why Creative Commons exists (although technically, artists already have the right to choose how their works are shared even under Copyright law), and I wholeheartedly support those artists who create and allow for sharing and redistribution within their own limits. In a perfect world, all creators would be crystal clear about their personal views toward how they want (or don’t want) their works to be used.
But that doesn’t mean that those creators who want to make a profit or receive some form of royalty from the use of their work are “bad” or “greedy.” If the creators choose to let you use their content for free to boost publicity — awesome. If not, I think there’s a case for respecting their choice. I’m not exactly of the mind that copyright always stifles creativity. Really, copyright exists to help reward those people who create, and Creative Commons licensing helps make that more transparent.
Intellectual property and copyright law is not just about big, faceless corporations picking on individuals with meager means. They might get a lot of the coverage, but small creators are quite often the victim of copyright infringement. Think about hobbyist photographers who have their images posted, or small scale web designers who have their UI or code copied. In the end of this long spiel, I just want to say I think it’s important we continue to learn how to adapt and regulate the law so that both creators and consumers are able to benefit. It’s complicated, it’s tiring, and honestly, piracy isn’t going away anytime soon so creative industries have to find some way of competing or coming to terms with it.
Law.cornell.edu, (2015). 18 U.S. Code § 2319 – Criminal infringement of a copyright | LII / Legal Information Institute. [online] Available at: https://www.law.cornell.edu/uscode/text/18/2319 [Accessed 24 Feb. 2015].