Image courtesy of Drew Douglas duly attributed here
The photograph above was taken at a rugby league game in Port Moresby, Papua New Guinea, in September 2008. In it you can see young children and older youths watching the game from rooftops adjacent to the stadium.
Tho photograph below, nearly a hundred years earlier, shows fans watching a 1914 World Series game in Shibe Park. My thanks to explorePAhistory for sharing the photo.
Two photographs. Nearly a century apart. Of people watching a sports game without paying.
The question is, were they stealing? Would you call it stealing? I wouldn’t. But I know some people who would.
People involved in the distribution of published material have tried their best to call such actions “stealing” since the beginnings of copyright. If you really want to understand what copyright is about, what its origins were, then please go and read this excellent piece. It tells you why copyright had everything to do with distributors, distribution and central control and very little to do with authors, musicians and artists. Why it had everything to do with censorship and exclusivity and very little to do with creativity and free expression. In fact, if you get the chance, spend time at questioncopyright.org; there’s some very useful material there, including this video, Copying is Not Theft.
After 9/11, there were people who tried very hard to conflate “Muslims” with “terrorists”. I have many Muslim friends, and none of them is a terrorist.
During Katrina, there were people who tried very hard to conflate “citizen” with “refugee”. Citizens have rights; refugees rely on the generosity of others. The rights of New Orleans citizens were sought to be weakened by the conflation, a technique that George Lakoff wrote about quite eloquently.
So it is with copying in a digital world. People are trying to make you believe it is stealing. To understand what’s happening, let’s look at the ticketless folk watching the rugby and the baseball from the rooftops.
What are they stealing?
In the same photograph, you can see folks who paid for the tickets watching the game. They’ve paid for the right, and they’re watching the game. The people who sold the tickets make their money, related to the seating capacity of the stadium and the number of tickets sold.
Economists call such “goods” nonrival, to the extent that one person enjoying the good does not detract from the ability of others to enjoy the same good. The people who promoted the games did not incur any costs related to the people on the rooftops. If you can make a copy of something without in any way affecting the ability of others to enjoy that something, economists call such goods extreme nonrival goods. Sunsets and panoramas and views are examples of extreme nonrival goods, as are openair concerts and street theatre.
All these openair events share something in common. They’re in the open. Repeat that. They’re in the open.
People who promote sports events and street entertainment and openair concerts understand this. They know that as a direct result of their actions, others will be able to enjoy what’s happening. For free.
They can stop this. Very easily. By not using open spaces to do this. If they moved openair concerts to closed venues, the possibility of others freeloading diminishes. This open-to-closed spectrum is a continuum rather than a set of discrete outcomes. So, for example, you can build walls around openair venues, as happens with Kenwood. I have paid for, and enjoyed, many concerts at Kenwood, in the wet and in the dry. This summer my children will be going to concerts in Reading, and they will have paid for the tickets. Passers-by will be able to hear the music, but nowhere near as well as people sitting in the roped-off areas.
Shibe Park, in Philadelphia, decided to do something about the onlookers. So they built a bloody great wall around the stadium. Shame, but that is how some people think.
This summer, there are a few concerts taking place around Hyde Park, with tickets and with reserved areas. Can you imagine how it would be if the promoters managed to convince the Crown that a 16ft wall should be erected all around the park, just so passers-by won’t be able to catch glimpses of the concerts?
In a way, that’s what music and film distributors want to do with the internet. Like Hyde Park, the internet is a commons, something that has been designed with openness and sharing in mind, something that can be enjoyed by people without detracting from the enjoyment of others.
But only if we stop people from erecting hideous walls around the commons.
The Digital Economy Bill seeks to do this. And it’s worse than that. Because it seeks to protect and enhance distributor rights while actually damaging the rights of consumers and creators in many walks of life. Photographers, for example, are heavily affected. Just read Kevin Marks here and Simon Phipps here, or go to Open Rights Group to find out more about what you’re about to lose.
Think about this. If internet copying was really stealing, then there would be an active disincentive to produce digital works. Yet, in the apparent heyday of internet copying, every form of digital publishing is on the rise. There are more books being written and published, more films made, more albums released. Why would this be? Looking for that answer, I spent some time with Paulo Coelho some years ago:
I wanted to talk to Paulo for one simple reason: I’d heard rumours that the biggest pirate site for Paulo Coelho books, Pirate Coelho, was actually paid for by Paulo Coelho. In fact that has since changed: Paulo now hosts them in a subdirectory of his own blog, here. An author who pays others to rip him off? I needed to talk to him.
His answer is best understood in this statement from Wikipedia: In total, Coelho has sold more than 100 million books in over 150 countries worldwide, and his works have been translated into 67 languages. As an author, he wanted to reach as many people as possible, particularly in different cultures and geographies. His publishers had their way of doing this. His fans had a better way.
The internet, with its extremely low cost of copying and distributing things digital, transforms the access and distribution landscape for many industries. Its effect is felt most painfully in the publishing industries: music, film, journalism, books. The pain is at its most intense for those whose function with the industry was centralised control of distribution.
I work for a telco. Before that, I worked for an investment bank. Some time before that, I worked for hardware manufacturers with proprietary operating systems. All my life I’ve been working in industries where the core monopoly rights of the industry have been taken away by technological advance, often aided and abetted by regulation.
Regulation is first and foremost meant to protect customers, to protect the consumer. It does this in many ways, at least one of which is in preventing monopolies and reducing any significant market power.
When it comes to music, film, books and journalism, things become very complex. It’s like having a fire in the fire alarm system. The very people charged with telling you the truth about what’s happening are themselves affected by what’s happening. Which means that with a few exceptions, mainstream media have not woken up to the wholesale damage being planned by the Digital Economy Bill.
Let me end with this. Copying per se is not stealing. After Michael Jackson did his moonwalk, children the world over copied him. They were not stealing. Digital forms of music, film, book and newspapers are cheap to copy and to distribute, because of the internet. The internet is a commons, specifically designed for doing this. For copying and distributing. Throwing that away just to protect the “rightsholders” is questionable in the extreme. Digital assets are nonrival goods, shareable without affecting the rights of anyone else to enjoy the same thing.
- Distributors of digital content are feeling the pressure, and some are using questionable techniques to lobby Government into acting.
- The data on illegal downloaders is suspect, as is the claimed revenue losses. Price elasticity of demand is not adequately allowed for. It’s like saying kids on the rooftop would otherwise have paid for tickets to watch the rugby. Just not true.
- The people involved in the process are suspect, largely unelected, and with clear bias supporting the very industries under threat. [This is a bit like placing an investment banker at the head of Treasury and asking him to solve the woes of financial markets. Oops.].
- The democratic process itself is being subverted, lobbyists are seeking to ensure that the Bill is not properly debated in Parliament before being passed. To me this is more criminal than anything the Bill seeks to prevent.
- The punishments suggested are technically complex, expensive, time-consuming and guaranteed to fail. They will waste a lot of time and expense, your time, your expense. Our time, our expense.
We have very little time to act. So please please get going, write to your MP, call her up, meet him, do something. Start off with reading this, make sure your voice is heard.
17 thoughts on “The Digital Economy Bill: Thinking further about copyright”
The Digital Economy Bill would be more akin to placing one of the Israeli walls around Hyde Park, machine gun nests and all.
You are becoming silly now!
The analogy you are trying to make about the spectators on roofs being able to view the action from a distance being equivalent to illegal downloading is false. The spectators would need to in front row seats for teh analogy to work – so it doesn’t.
The analogy is consistent if you consider the loss of data and experience of a recorded event in comparison to a movie or live concert. If you consider digital distribution mediums such as DVDs—they’re already shared among families, friends, and are even shown in offices and department stores as a preview for potential customers.
If you haven’t read it already, you may find it interesting to read Jack of Kent’s excellent post:
Jack of Kent is a lawyer and he explains the legal difference between copyright infringement and theft. In particular copyright infringement is a civil offence, not a criminal offence.
No, the analogy between open-air spectators and downloading is excellent: the point is, neither of them costs the “performers” more, nor do they cost the venue more. It’s not the rooftop spectator’s responsibility to see to the viability of someone else’s business model.
Or as Ian Clarke famously said, if your business model is to sell water in the desert, and it starts to rain, then you need to find a new business model. Declaring it immoral to catch free falling rainwater is just not going to work for very long. We’re already starting to see it break down.
I really enjoyed the post, thanks for writing it!
In my previous guise as a games writer, I was published and sold games. Long after Virgin stopped doing anything but the airline, my stuff was made available on abandonware.
Suffice to say, the players who “stole” my software have done more to actively promte the whole industry , as well as me, than any publisher.
In some sense, the “thieves” are nearer to archaeologists. They find the lost. Almost ressurect the dead. Are these people criminals?
JP, I’d suggest that ‘freeloading’ is (or should be) reserved to those situations in which consumption occurs without payment, not reception. And let’s not forget that art (concert or game) is NOT consumed by its audience, but received and hopefully enjoyed.
It is only the 18th century privileges of copyright and patent that have created the idea that mankind’s science, technology, and arts can be ‘privatised’ and that none who have not paid for their instance, copy, or reception license deserve to benefit (indeed, are criminals). (I now even see potted plants with ‘no propagation permitted’ warnings on them!)
People who use public libraries are not literary freeloaders, nor for that matter are file-sharers. The people who want a public event or work to be produced will pay. That many others in the public may benefit who had not paid is not freeloading, just as we do not freeload in our enjoyment of Shakespeare.
Karl, unfortunately the ‘rainwater catching’ simile has already been usurped: http://onthecommons.org/content.php?id=2444
The orphan works legislation was a positive part of the bill. But the moral panic manufactured by some photographic groups has had its intended effect. Which is a shame as their fears were a product of a failure to try and sell their work rather than any prospect that big media might treat them any worse than it already does.
Nobody wins with the orphan works clause removed.
I agree that we need to address the problem of orphan works, but I think the clause in the bill got it totally wrong and simply did not address the problem. I’ve written about this extensively at:
Great post. The analogy is entirely consistent. I lived in Rabat, Morocco where pirated DVDs were available in the medina for about 2 to 3 dirham a pop. Selling the DVDs at the level they go for elsewhere would have cut out the vast majority of the population, so there’s no market. Being there’s no potential market, we’re the people stealing? No.
Another example: When I was a kid in Salem, Oregon, my friends and I would take our bikes to the local drive in. Inside the drive in area you tuned your radio to a station that gave you the sound. We could sit on an adjacent hill with our radio and mostly get the signal and watch the film. The drive in required a car to enter. We didn’t have a car so were not part of the market. Is that stealing? No.
The DEBill assumes that all users represent market, and this is not true. Now living in UK, I can only see it doing more harm to the economy it seeks to prop up while also criminalizing people regardless of their actual behaviour.