If I never read the Boingsters, I probably would never encounter the “right to take” as a great new idea. But two recent posts point out something of the hypocrisy and the case-by-case arbitrary judgement that really is at the core of the arguments against respect for authorship – let’s call them the “anti-authorship” group – who call themselves “copyfighters” and part of the “remix” culture:
- On June 29, 2005 Boing confirms that big Nike stole little rock band’s imagery without payment. The taking of the stuff of others wrong.
- On July 6, 2005 Boing praises an essay in Wired which states that the new era of takery is here:
The remix is the very nature of the digital. Today, an endless, recombinant, and fundamentally social process generates countless hours of creative product (another antique term?). To say that this poses a threat to the record industry is simply comic. The record industry, though it may not know it yet, has gone the way of the record. Instead, the recombinant (the bootleg, the remix, the mash-up) has become the characteristic pivot at the turn of our two centuries.
So because it now can be done, it must be ok…except when we like the band and the company that takes is big. The sad thing is that people by what Boingsters like Cory Doctorow and Wired and they say about the appropriation of copyrighted material because he has successfully leveraged status rather than successfully argued the point. It is a tyranny of the self-described cool, which is a very weird tyranny. Sadder still is that there may be good arguments for specific accommodations of digital media which are lost through this broad and craptastic “remix culture” pap that sounds so neato…until it is your website layout, your icon, your text, your music and your art that is taken.
[Original comments…]
Declan – July 6, 2005 2:32 PM
http://www.crawlacrosstheocean.blogspot.com/
I agree with your assessment of boingboiners hypocrisy here and also wehn you say, “Sadder still is that there may be good arguments for specific accomodations of digital media which are lost throught this broad and craptastic “remix culture” pap that sounds so neato.” – but I object to the use of the words ‘take’ and ‘theft’ in your post.
In my mind, in order to take something, it has to no longer be where it was. For example, if you say to me, ‘you took my last slice of pizza’, but you still have possession of that last slice of pizza then the word ‘take’ doesn’t really make any sense.
There’s a reason why we use the expression ‘making copies’, rather than ‘taking copies’.
Following that, if there’s no taking, then there’s no theft. I’m no lawyer but perhaps that’s why courts tend to use words like ‘infringement’ and ‘breach’ when talking about intellectual property, rather than ‘theft’.
Semantics maybe, but I think it’s an important distinction.
Alan – July 6, 2005 2:40 PM
But that is not the way the law works, Declan. In Scotland, I can be charged with taking a trout from a river even though the trout population stays stable. If I set up a company to take water from a lake in Canada to ship to the US I would be taking it even though the water is replenished.
To my mind, with respect to you, this argument you present is one of these non-distinction disctinctions used in the early stages of the Boingery house of cards misinformation. The right to exclude, not the impossibility of copying, is the hallmark of property whether it is physical or intangible. If you take my art you take my right to control it and make use of it as I wish. You devalue it. You make it hard for me to sell it as I wish given you corrupt the market for it.
Remember, it is mine even though the digital world makes it easy to take a perfect copy of it. This is one reason that the mere possession of take and enter tools is a crime under Canadian law.
Rusty – July 6, 2005 3:17 PM
“Sadder still is that there may be good arguments for specific accomodations of digital media which are lost throught this broad and craptastic “remix culture” pap that sounds so neato…” Exactly. There are ways to accommodate the realities of new technology while still allowing writers/photographers/creators the right of ownership of the material they produce. The act of labour (i.e. producing something whether concrete or in idea form) is one of the few fundamental ways that the whole concept of property can come into being. If I produce something, it is mine until I bargain my rights to it away. If someone unlawfully acquires the thing I have produced, it is still theft even if they add something of their own to it. I think “theft” is “unlawful acquisition” whether or not the item is corporeal or a copy or an idea.
‘nee – July 6, 2005 3:29 PM
http://www.westcoastgirl.com
Taking stuff is wrong. Illegal music? Wrong. Just because companies, say, are charging too much money for their music and screwing artists doesn’t mean that stealing the music is any more right: it might be understandable, and it might not even cause the harm they claim, but the principle of property ownership is being violated, and it bugs me when people try to weasel out of their moral responsibilities. Second, fair use is still a provision of copyright, last time I checked – we can sample things, we can make collages, we can use parts of work as an example for educational purposes.
On another note, I can’t even count the number of times I’ve seen people take GPL work – free, dude – and remove the GPL license and remove the author credit, the only prerequisite for use of the work. I could just scream. Stealing free stuff: how low can you go?
Alan – July 6, 2005 4:16 PM
Fair use in Canada is more restricted than in the States but it is still very useful. I have gone on and on about it here.
I am sure that collage making is a great evil but on different grounds.
Alan – July 6, 2005 5:30 PM
One other point: note the acceptance of the concept of “theft” in the 1999 Federal Court breach of software copyright case Adobe Systems Inc. v. KLJ Computer Solutions Inc. (T.D.), [1999] 3 F.C. 621, 1999 CanLII 7905 (F.C.). Its in the section of the court’s analysis entitled “(b) serious injury”.
Matt F. – July 6, 2005 8:11 PM
http://www.livinginasociety.blogspot.com
I think the whole concept of ‘intellecutal property’ is riduculous, and this is coming from an aspiring academic who is the son of an academic.
Every work of art, every idea, up to this point, with the possible execption of a very few, has been a combination of what has come before.
If I do not have the right to take your music, or your words, or your images and include them in my own work, either unchanged or re-interpreted, then the re-production of ideas will end. Everthing’s been done; there is nothing truly original. All that remains is variations on a theme. Attempts to sue people over too close a reproduction of one theme as opposed to another makes no sense to me.
When does ‘re-interpretation’ stray into the realm of ‘copying.’ You can’t own an idea.
Alan – July 6, 2005 8:13 PM
But that is why copyright only protects the expression not the idea.
Rusty – July 7, 2005 9:26 AM
Is Matt F. expressing some kind of post-post-post-modernism here? Nothing is new, everything has been done, history is repitious doom, everything old is new again. By that logic all copying and remixing is just a re-hash, too. Why bother doing anything, then? Its all boringly unoriginal. How sad.
Alan – July 7, 2005 9:31 AM
But in fact right. The fact that we continually express as a species has little to do with the filling of gaps in original thought. We have a drive to simply express and due to the complexity of society very little can actally be perceived as identical in the specific though there are obvious generalities and themes that can be drawn. This is one of the beauties of copyright protection as it, again, protects individual expression.
Rusty – July 7, 2005 9:50 AMof an idea in itself, though it may trigger thought in the observer.
expression=labour.
idea
So it would be more about the second expression being based on a first expression requiring permission of the first expressor. If the second expressor is reiterating an idea expressed before it needs no permission. As we learned from the music rip off cases like “My Sweet Lord” and the earlier “She’s So Fine” there is a point at which the second expression is so dependent on the first that there is not new value in the seocnd and all revenue from the second must flow to the original expressor.
Alan – July 7, 2005 12:54 PM
See here another off-hand dismissal by Boing of theft of a paid for service – in this case wi-fi. If I poach cable TV, it is crime. If I poach wi-fi it is…what?
Have a look at this discussion from two years ago about the concerns for use of private wi-fi without consent.
Declan – July 7, 2005 4:47 PM
http://www.crawlacrosstheocean.blogspot.com/
Sorry for the slow reply, but, “that is not the way the law works, Declan. In Scotland, I can be charged with taking a trout from a river even though the trout population stays stable. If I set up a company to take water from a lake in Canada to ship to the US I would be taking it even though the water is replenished.”, doesn’t really address my point. If I take a trout from a river, that trout is gone. The population isn’t stable, it has been reduced by one.
If I could just make copies of the trout in the river, I highly doubt there would be any law against me doing so – who would it harm? If someone had a copyright on trout, then I would be in breach of copyright, but we’re back on different ground again. This is even more true for taking water from the great lakes which is certainly unsustainable if done in large quantities.
I take the same issue with the court’s use of the word theft in that context as I do with yours. I think the court was in error to use that wording, which I doubt is contained in any of the relevant laws.
The distinction is important because ‘taking’ is a zero-sum game with no benefit to society (hence it is always illegal). Making copies however, does have a net benefit to society, so we need to balance the interests of producers and consumers to maximize the benefits to society.
Using the language of ‘taking’ when we should be using the language of ‘making’ causes us to get the balance of interests between producers and consumers wrong – thus leading to a worse outcome for society.
See ‘nee’s comment above in which all sense that society’s interest may not be in treating intellectual property the same as physical property has been lost. Where in that logic would a library or expiry of copyights after a certain number of years make sense. If ‘taking stuff is wrong’ how does it become OK after a certain number of years?
Alan – July 7, 2005 5:09 PM
There is not really a debate her, Declan, but I do not beleive you are apprecciating the state of the law. It does not matter that replication is possible. Copyright always is a bar on replication for the stated number of years. What is being taken is control of that replication power during that protected period so that the original expresser gets to squaeeze all the commercial value out of it. The fact of the law having the time limit does not diminish the reality. All property is a legal construct with such limits.
So we should always use “taking” when an interest is lost and/or converted by another – whether tangible or not. It creates a false dichotomy to demanding use of separate language. That demand displays the desire to forge a new legal contruct that has yet to come into being. You – and the Boingers and the Wired gang – do not explain why that is a good or lawful or useful thing. There seems to be a premise that it ought to be because it can be done. Many things which can be done are prohibited by law. The taking of replication rights of my digitized assets are no different.
James Bow – July 7, 2005 5:24 PM
http://www.bowjamesbow.net/
In the Florida case, I would have to say that the wi-fi owner is at least partially at fault and that arresting the neighbour goes well beyond sanity. The quote states that the owner’s wi-fi signal was unencrypted, suggesting it did not even have password protection.
I don’t know all that much when it comes to technology, but in setting up my home’s wireless network, I at least had the sense to set up a password. So a neighbour sharing a totally open wi-fi connection could hardly be liable, but a neighbour trying to get around a password is another matter entirely.
Alan – July 7, 2005 5:31 PM
If I leave my door unlocked and you come in and take stuff, that is still break and enter I think. It is certainly theft. I may have to check. But what if the wi-fi were billed to the victim on a per usage basis and though he did not encrypt he was billed. Is that not a taking?
Alan – July 7, 2005 7:00 PM
To be fair to Declan and to make sure my street cred remains what it has been, have a look at this 1988 Supreme Court of Canada ruling on the difference between theft and copyright breach. Deprivation of information which is not theft, however, may still be criminal fraud. I am going to look at some later law on this.
Alan – July 7, 2005 7:03 PM
Also look at this BC Court of Appeal ruling from 2000 on the intersection of copyright and crime and especially at this passage about the deprivation of a duplication right being a crime:
Declan – July 7, 2005 9:13 PM
http://www.crawlacrosstheocean.blogspot.com/
Heh, it’s not often people dig up obscure court cases to help me argue against them 🙂
I fully appreciate that breach of copyright is (by definition!) illegal, it is only the words I am disputing.
“It creates a false dichotomy to demanding use of separate language. That demand displays the desire to forge a new legal contruct that has yet to come into being.”
Actually I think there is a true dichotomy here. The legal constructs (copyright law vs. physical property law) already exist. What is needed is the proper language. The phrases ‘taking’ and ‘theft’ (in my opinion, of course) naturally belong with physical ‘zero-sum’ property. I prefer the word ‘making’ as the verb to attach to the act of copying something but perhaps a new word is needed which reflects that what is being copied is under copyright and thus protected by the law. ‘Breaching’ anyone?
e.g. Hey, do you mind if I breach your new Sleater-Kinney CD?
“You – and the Boingers and the Wired gang – do not explain why that is a good or lawful or useful thing. There seems to be a premise that it ought to be because it can be done.”
No, this is most definitely not what I am saying. I tried to explain in my previous comment why copying is a good thing. Given that a song or a pill or a whatever has value, if there is more of that thing in society then society is better off. So copying stuff benefits society. Set against this benefit, is the future losses from discouraging people to create stuff which can be copied in the future.
Copyright law tries to balance these two needs. Property law has no such need as there is no net benefit to society from me taking your VCR, or the trout in the river or whatever, so the only purpose of the law is to protect the property holder.
Alan – July 7, 2005 9:25 PM
Even I, the old Red, could not say this with a straight face:
In a democratic society, the right of the creator is valued more than the maximizer. The law of the maximizer is the law of the work camp. I think it is telling that it is the new entrepreneur who is behind this – the consulting internet guru, the grasping Nike. As long as they can get their hands on the work of others and put it up for sale as their own, then they say society is the greater – not mentioning that it is only there pockets that get stuffed. The new dark satanic mills of the taker.
Declan – July 8, 2005 3:28 AM
http://www.crawlacrosstheocean.blogspot.com/
Huh? I don’t think the point I’m making is really all that controversial. People are better off when they don’t have to pay monopoly prices for all intellectual property and can thus afford to buy / have more. I, personally, am better off when I can get something for free rather than having to pay for it. That’s all I’m saying.
Imagine if we had given Ford a perpetual patent on the idea of the car, such that nobody could ever make a car except him (or his descendants, or his company). Would society be better off? Obviously not. It’s the same principle with intellectual property.
Note that I’m not talking about the moral rights here, just the economic ones (or whatever they’re called, I never remember, but you know what I mean).
Alan – July 8, 2005 7:48 AM
That is a separate but interesting economic point. My main point is that we do not reorganize society primarily to distribute ownership to maximize societal wealth. Arguing against copyright on that basis may be economically valid (I don’t think it is) but it is ignoring the fact of the primacy of ownership by authorship.
But I think your point is not correct in that we only become richer through commerce. Free in the short term may suit you but through commoditization, exchange occurs, the marketplace expands and wealth accumulates and is distributed. Sure we have limits on this. We tax and we provide to those who do not do well in the marketplace – but even that serves the marketplace by placing coin in the hands of more people so they can spend it (hence the true glory that is the modern socialist state).
We limit copyright in that it is for a term but the point of that is to give the author first kick at the can. Nike in taking the work of the punk band did not care about this, did not pay the authors of the imagery, Nike just took. No market exchange, no expansion of wealth. We were all worse off economically because the band could not spend what it was due at my store. That is it made illegal and, in its grossest form, made a crime.