Rationalizing Piracy (or not)...

I had a short conversation with a friend on Facebook where I noted that, for the past several years, I've adopted a zero-tolerance policy when it comes to 'piracy'. I've never been the kind of person who downloads music, movies, or games for free, but I certainly shared tunes during the Napster craze in college. I'd also delved pretty deeply into classic system 'emulation' before my 20s. I have mixed and somewhat complex feelings about the causes and effects of piracy in modern media, but by not partaking in it myself I can put my money where my mouth is and support those creators whose stuff I feel is is worth keeping afloat.

Then I had a brief exchange with a man working at a used record store last weekend during which he brought up an interesting philosophical point: What about media that is no longer in print, but isn't old enough to have fallen into the public domain? Is it ok to download PDF versions of such books, or ripped copies of such movies or video games?

The law is fairly clear on this: So long as someone holds the copyright on a work, you're not allowed to reproduce it, even if it's out of print. The only real recourse that you have to obtain it for yourself is to attempt to find it used1. I only said 'fairly clear' because actually finding out whether someone holds the copyright to a work can be pretty tricky. Apparently, when a company goes out of business without finding a buyer for its assets, it's fairly popular for them to 'write off' intelectual property as a loss for tax and bankruptcy purposes. While there's no clear legal standing to such material - apparently 'scholars' are unclear on whether such material automatically becomes 'public domain' - it has spawned the software concept of 'abandonware', or software whose copyright holders have relinquised their legal hold on the material. If someone still owns this stuff, they're not complaining. See Abandonia or XTCAbandonware for examples of sites that openly distribute such software.

But let's put Abandonware aside. Rather, consider only media whose publishers are still in business, but who no longer actually publish or support said work. I have to admit that I can't morally justify its piracy to myself: There's always the possibility that the publisher will re-release the work at a future time. I've already experienced this with a recent book: it had been out of print for almost a decade, but was re-released last year as a Kindle e-book. 

Despite my inability to justify such piracy to myself, even I can admit that there are some titles that are highly unlikely to see re-release. For instance, some games were programmed during in an era when it wasn't common to create extensive backups or were designed for systems with architecture so unique that it's almost impossible to 'port' them to modern computers in any form2. Similarly, certain TV shows and movies incorporated licensed music or themes whose contracts have expired, and any attempt at re-releasing them would require extensive renegotiation of royalties.

The one somewhat legitimate argument (and I use legitimate here in the literal sense of 'justifiable') that was made by the gentleman in the store is that of 'cultural preservation'. We would balk at the idea that Shakespeare's or Jane Austen's work could be lost to the ether of time because of legal disputes over who owns the rights. We're lucky that because they're written down on fairly durable material, which survived the expiration of its copyright, it's unlikely that every single copy of Hamlet or Sense and Sensibility could be somehow lost. However, because it's impossible to buy legal copies of the Star Wars Holiday Special, were it not for all the nerds uploading it to sharing sites, it could become a tragedy of time3. Disks and magnetic tape don't last for ever, unfortunately.

I'm pretty cynical, and I'm willing to bet that 95% of people who claim that they're involved in 'preservation' of media are actually just rationalizing what amounts to theft. There are organizations dedicated to keeping a record of the history of classic works - Project Guttenberg for books, or The Lost Levels for unreleased videogames - and you can usually tell if they're legit by whether or not they have 'skin in the game' (are they investing time, effort, and cash in 'preservation' or just hosting pirated works on an anonymous, free service?). But then again, if someone is honest with themselves and admits that the only recourse they have if they want to experience a particular piece of media is to pirate it, it's difficult to condemn them... Which, I suppose, is just one more argument for why making one's catalog available digitally at a market-reasonable price is a great start to curbing piracy. 

1This is creating a massive headache for people looking towards the future of media. If you read the End User License Agreements of digital goods (and who does?), you'll often find that there are provisions indicating that the provider has no obligation to provide access to the good indefinitely. Some services, such as Amazon's Kindle e-book reader or MP3 store basically give you a copy of the files, so you can be responsible and back them up yourself. Other services - especially as relates to movies and software - require authorization keys locking the media to a particular piece of hardware, and/or access to internet servers to authenticate the product everytime it's used. When those servers go down, what happens? 

2For anyone interested, it's really fascinating to look up the details of the failed videogame console known as the Sega Saturn. The Saturn was such a unique and custom piece of hardware that software designed on it was almost impossible to run on other systems. Just for starters, it was a 3D system that rendered quadrilateral polygons rather than the triangular polygons used by every other system up to present, meaning that it was incompatible with the design software used by everyone else. To this day, it remains one of the most difficult if not nigh impossible systems to emulate, and almost no big originally Saturn-specific titles have ever been released on retro-gaming services, legal or otherwise.

3Yes, I did intentionally, implicitly compare the Star Wars Holiday Special to Hamlet.  

Comments

[langmann]

This is a really interesting discussion Carlo.

It also reminds me of the fact that in the 1980s (i was actually old enough to remember our family's Betamax recorder) there was a Supreme Court decision that could have ended Beta/VHS completely due to a possible interpretation that since Beta was only designed to record movies/TV it would be used to infringe on copywrite and thus should in essense be banned. Well it went the other way into the fair use argument and it was only several years later that VHS completely revived the whole movie industry as home rental income skyrocketed.

The most relevent issue is of course the music industry. We talked about how the economic evidence still presents a negative loss from pirating even when including beneficial effects of pirating. However it may deincrementalize the industry, or remove the middle man, and allow for more independent musicians to market themselves.

I still think the music industry can figure out ways to take advantage of the free market and current copywrite law to keep pirating minimal, and that crazy invasions of privacy are not required on the internet to patrol for this. I am reminded of the invasions of your home that are allowed without obtaining warrants for all sorts of municipal reasons, more than many people realize. This article here is interesting:
The-20-000-snooper-army-Vast-number-town-hall-bureaucrats-power-enter-home-warrant

One of the ways around piracy may be making it socially awkward. For eample there is a lot of studies showing that just the negative social connotations of drinking and driving have caused greater reductions in that habit than any of the current laws. I have noticed having purchased independent music, that on chat rooms and forums anyone who even speaks of ripping independent or small producers of music and artists are roundly beaten on and discredited.

As a special interest I did torrent searchs for independent music (not released by the artist on torrent by themselves) and found little sharing of that music. It could be that people simply had no interest in it, or it could be that its just not acceptable.

The other question is time-shifting. I often PVR tv shows I am interested in because of my work schedule. This has been allowed due to a Supreme Court case involving time shifting. However when I accidently miss a show, am I allowed to torrent it and watch it then? Is that in any way more unethical than PVR?

And as you raised the issue of things that are no longer ever expected to be released again, that is really interesting point of view. I mean there are some things I am sure I will only find in a bargain basement bin in a retail store in Japan. Could people ripping things like that LEAD to a public increase in awareness leading to rereleasing these things for sale?

This also reminds me of the Ultima projects which wanted to port the Ultima games to online interfaces where people could play their old favorites like Ultima IV online. Ultima projects even sprung up for Neverwinter NIghts 2. And ironically these were all stomped by the lawyers, sadly the NWN2 project AFAIK never was finished and I was really looking forward to that... which may have led to Ultima games being released by the company for interests sake? Quite honestly I did not see how the copywrite owners were losing anything and could only gain by increased awareness of Ultima, and in fact could it have led to an interest in redoing moderniuzed versions of Ultima IV for instnace??

[Carlo]

Wow, this is one of those posts where I edited it down from a longer discussion and only realize how many mistakes were left in it, upon re-reading. Ungh.

As to your comment, yes, I fully agree that there is a negative loss for pirating, and agree that companies whould be much more creative in terms of solutions. ALL industry is plagued my theft and counterfeiting - while most sectors are made to bear the cost of doing business, passing it on to the consumer, media seems particularly prone to rent-seeking. I'm not unsympathetic to the idea that the internet is a uniquely dangerous element to the mix, though (again, creative solutions are required).

The public shame angle is really fascinating - it boils down to the difference between negative and positive incentives. The problem that I've noticed is that some people don't even bat an eye at piracy. Like, they don't even remotely consider that they've done anything 'wrong'. Intellectually they can acknowledge that it's 'illegal', but since they weren't going to buy it anyways... Anecdotally, there seems to be some kind of correlation with distrust of 'corporations and government' and piracy. The biggest pirates I've met are either from poor countries or countries that have a history of distrust of government (Eastern/Southern Europe). I seem to remember an econ talk podcast discussing some work that correlated functioning economies with stability of laws and institutions.

Could people ripping things like that LEAD to a public increase in awareness leading to rereleasing these things for sale?

I'm not a legal expert, but I have heard a few on tech podcasts and this issue has come up before. Some companies may simply be dickish, but one interesting possibility concerns a provision in US copyright law that basically requires you to make a reasonable effort to challenge copyright violations in order to maintain the copyright.

Specifically to the videogame point - there was a pretty famous situation a few years back where modders were actively and publicly making an RTS based on Halo using the Warcraft 3 engine - this was not for personal profit. It was suddenly shuttered, triggering a big WTF from the community. One year later, Microsoft released an official Halo branded RTS, so in this case their claim was 'valid', I guess, based on 'brand confusion'.

I agree that fan interest should be cultivated, not smacked down, and it seems that some smaller, less corporate devs are pretty good at doing that. I think that some developers, like Valve, do a good job of 'open sourcing' their engines to the community for non-commercial purposes (I'm not sure if they're open for commercial purposes as well). Thus a large number of 'Source-Mods' have proliferated, some of which have spawned new commercial development studios and/or led to people getting hired at Valve itself. The engine is also apparently used in colleges that teach programming and modeling. Seems like a win-win, but may not be realistic for all companies.