It's propaganda. So?

Yet, despite this non-exclusive nature of digitized material, might online piracy somehow still be a wrongful means? In some sense, it is “wrongful” precisely because it duplicates and subsequently circulates digitized material, thereby infringing copyright law, which grants a copyright owner the exclusive right “to reproduce the copyrighted work in copies […]” and “to distribute copies […] of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(1), (3). However, I am not convinced that online piracy is wrong simply because it is incompatible with the letter of the law. Copyright has two broad objectives: (1) to incentivize the creation of works; (2) to incentivize the efficient exploitation of works. [2]

I thought its purpose was to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The basis of (2) is the likening of intellectual property to conventional private property: just as a person will bother to manage, maintain and improve a piece of property only if he has exclusive property rights over it, so an author will be encouraged to make his work better only if he is the exclusive owner of it. But this analogy is fallacious because ownership is necessarily linked to exclusive property under this model. Yet digitized material, unlike private property, is non-exclusive; changes effected by somebody else other than the author to a digitized copy of the work do not preclude improvements made by the author himself. If anything, it would be more accurate to compare this to making a separate copy of the private property, in which case the owner would not be prevented or discouraged from doing whatever he wants to do to the original. Nevertheless, the difference remains here that making a digital copy costs nothing.

Why are these footnotes, instead of links? What use are they to the reader at the end of the page, when you can make it easy for her to click anytime she needs to and ignore anything she doesn't require?

I don't understand the point of this essay draft. An "e-book" is just a file on the Net. If an author wants to make it available on terms that permit sharing, she can do so. That's what the Creative Commons portion of the free movement is designed to make easy. That's what copyleft is for. If she wants to make it available on terms that prohibit sharing, copyright exists to make that possible, too. You don't dispute that these current rights allocation schemes exist, and that violating rights so allocated is a civil wrong, and can under some circumstances be a crime, whether the rights being violated have been licensed in copyleft or copyright styles. Nor are you apparently arguing that copyright should be repealed, to be replaced either by copyleft or by an unrestricted public domain. So what is the draft's actual thesis?

The Anachronism of E-book Piracy

As for (1), unless the incentive in question is solely the abstract idea of exclusive ownership itself (as opposed to the ultimate aim of profit), I fail to see how online piracy, at least in the case of e-books, does not add to the incentive, since e-book piracy has been repeatedly shown to boost overall book sales. Paulo Coelho, who licensed the exclusive right to HarperCollins? to sell his books in the US for a given period of time, and who does not own any of the translation rights either, nonetheless enabled the unauthorized free downloading of his books previously in various languages. This is an unambiguous instance of deliberate e-book piracy, yet it clearly spurred book sales. [3] The phenomenon was also observed by Neil Gaiman, who subsequently changed his opinion on e-book piracy. [4] Even research on a larger scale has affirmed this. [5] In view of these empirical results, how can e-book piracy be incompatible with copyright law in spirit?

How else then might online piracy be wrongful? The most salient problem is that it does not reward labor duly, since readers (when it comes to e-books) can consume without paying. This applies to the entire e-book production and marketing team: the author, the editor, the copyeditor, the designer, and the marketing and publicity personnel. However, at this point a distinction appears between the legal and the moral: if it is a moral imperative to pay the laborer when his good is consumed, then such doctrines as the first-sale and fair use doctrines should not exist at all since they permit certain reader-consumers to avoid payment. My purpose in bringing up these doctrines is not to say that they are analogous to online piracy, but rather to highlight that the law is less concerned about absolutes and definiteness than it is about balancing interests, such that a familiar moral principle or even an established legal concept like copyright may very well be overturned by realities like the free alienability of goods if we take the example of the first-sale doctrine. (Of course the first-sale doctrine is explained in theory by the “exhaustion” of the copyright owner’s exclusive distribution and display rights upon the sale of an authorized copy [6], but intelligence tells us that this is but a legal fiction used to justify the reality of things.) Drawing on this, I believe that whether it be copyright or the principle that labor be duly rewarded upon consumption, ideas that were conceived and established under a different paradigm have to adapt to new realities once the fundamental premises have changed, and if these changes have rendered the traditional idea incompatible with reality. Here the new premise is the unprecedented fact that one can now reproduce the good at no cost, whether to oneself or to the author—this is reflected in the way the term “online piracy” itself misrepresents the situation and is thus a misnomer. Otherwise, we will just be penalizing the e-book for its advantages, and for what it simply is.

It would be too facile to conclude that e-book piracy is hence not a problem. It is a problem insofar as it is wrong not to reward the laborer(s) every time the good is consumed (even though I still have difficulty reconciling this notion with the already extant first-sale and fair use doctrines). However, perhaps this could be tempered by the idea that e-book piracy is a double-sided sword that, through acting as free publicity, helps to increase overall book sales.

[1] As drawn from the definitions provided by the United Nations Convention on the Law of the Sea Article 101 (http://www.un.org/Depts/los/convention_agreements/texts/unclos/part7.htm) and the International Maritime Bureau (“the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.” -International Maritime Bureau, Piracy and armed robbery against ships: a special report (London: International Chamber of Commerce, 1997) p. 2)

[2] Stephen M. McJohn? , Copyright: Examples & Explanations (New York: Aspen Publishers, Inc., 2006), p. 2-4

[3] http://paulocoelhoblog.com/2008/02/03/pirate-coelho/

[4] http://ruthellenparlour.com/2012/07/16/thinking-differently-about-ebook-piracy/

[5] http://toc.oreilly.com/2011/01/book-piracy-drm-data.html

[6] H. Ward Classen, A Practical Guide to Software Licensing for Licensees and Licensors (USA: American Bar Association, 2007), p. 16

Piracy and e-books (non-functional, average fiction book)

Why should you use your title to convey a part of your analysis in an obscure fashion that the reader outside our classroom almost surely won't understand?

Why is this the right way to begin? Shouldn't you be presenting the reader with a reason why she should be interested, not an avowal of interest on your part?

What is "piracy"? I thought it meant raiding commerce at sea. If it's not an appropriate word, why use it? Isn't the correct question whether sharing books is wrong if it involves making a copy while keeping your own? Is that what you mean by "it does not exclude"? The distinction you are making is otherwise obscure; but if that is the distinction you are making, it would appear to cut against your conclusion. Or do you mean that lost sales don't result in losing sales? If that's what you mean, then you have some more explaining to do.

The next thing is cost. Why do traditional books cost? Publishing, producing the physical book. And since online piracy rids us of the middlemen, ie the publisher, bookbinder, we should pay only the author or artist? So the cost should be dictated only by the mental labor.

Apparently, you think books aren't edited. Or copyedited. Or designed. You seem to make a distinction between mental and physical labor, and then ignore some of the mental labor. Why?

But how much of the price under the traditional scheme accrues to the author or artist? And how much does the average author earn under the traditional scheme anyway? According to an online comment, 8.5% of the cover price of the book.

Since when is "an online comment" the appropriate way to establish a fact? Surely you can perform enough research to learn about the standard terms of US trade book publishing contracts.

So that makes some 2 dollars per book sold if we take the average price of 20 dollars per book.

Where did you get that average price from? Wouldn't you expect a link to one or more reasonably-selected sources?

But let's say you're a J.K. Rowling--how much would you earn? Would piracy be hugely detrimental to you?

Is that a question to be resolved by asking the author? In that case, Ms Rowling being the copyright pig that she most definitely is, you will get an unambiguous answer. Unless you have a reason that it's not up to her to decide that question for herself? If you do, you have abandoned the idea that the copyright is her "property," by imposing a severe enough limitation to allow unlimited copying and distribution not under her control. If you don't, why does the first sale rule exist with respect to physical books?

And if we talk about paying for the author's mental labor, then what about library book sales and thrift stores?

Have you not considered at all the nature and structure of the system created by the first sale doctrine?

The earnings don't accrue to authors either. And what if the author is dead? Why should we pay for the work of a person who's dead? Whose labor is it supposed to be then? Why should we pay his estate?

Are you suggesting there should be no transferability of copyright interests? If yes, what becomes of the work for hire doctrine? If no, why are natural heirs particularly not suitable as transferees of copyright interests? What of the original term structure of the 1791 Copyright Act: fourteen years renewable for an additional fourteen if the author still lived: how does that "Founder's Copyright" system survive under your analysis?

Are you confusing who owns the copyright on the plans with who owns the house?

But in the end, are the earnings or the profit what drives authors? What exactly drives them? What drove the likes of: Tolstoy? Flaubert? Proust? Joyce? Pushkin? Shakespeare?

Are these rhetorical or biographical questions? If they have answers, are the answers more relevant because the people are considered to be more eminent? Dr Johnson said no man but a blockhead ever wrote except for money. Do we have to disagree with him in order to agree with you? Precisely why do the motives of an author, or the diverse motives of all the authors, matter in determining what the copyright policy of the society should be?

Ultimately, I'm not sure what drives such people is the money--nor should it be. It's about sharing. I think (and it seems that this opinion is shared by artists themselves online)

You know this is deplorable. You're not even linking to the completely unscientific examples of "artists" saying something about themselves somewhere that are pretending to be evidence of something in this parenthetical you are throwing away in the middle of a graf which otherwise depends entirely on our agreement with a proposition you are presenting as a personal uncertainty.

that the main motivation is about sharing, about being appreciated. Coelho said himself that money is the consequence, not the cause. The cause should be an internal compulsion, an inner drive. People say his success is only due to the fact that he was famous to start with, but, to start with, he didn't set out writing to make money through writing.

What does this mean? What does some particular kind of hardware you are imagining have to do with the digitization of books?

Why is free distribution chosen by the author being called "piracy"? Why is the difference between voluntary free distribution and intentional copyright infringement being elided? Have you analytically established to your satisfaction that it doesn't ever matter whether a copyright holder licenses free distribution, because the issue is completely caught up in the obligation, vel non, to obey the law of copyright?

An exception to what? You haven't established any analytical proposition to which a particular set of circumstances you haven't fully described would or would not conform.

This is indeed an appropriately bad first draft. Improving it requires ascertaining some facts and learning some law. Those steps will be in aid of some basic rethinking. The next draft will be differently constructed and will take an approach that either answers or avoids the questions I have raised.

On top of that, there's the nature of the physical book itself--it's different from music and films. Reading off a screen is just not sustainable. Not to mention the battery life problem.

So why is on-line piracy good? Free publicity. You can on top of this get out-of-print material through piracy (so the demands of the individual consumer are not subject to profit-making or cost-effective considerations). Also, piracy can be a way to winnow out real talent first, then have the text published in traditional book form. Because if something resonates with people, they probably will go out to get the real physical book. Or, to put it the way an online comment put it: If your ideas are good, the money will come. (Maybe not so much for music, but that's because of the inherent differences between the book and the song.) And if they aren't, maybe it's time to just start a blog and get a new job...?

So at the end of the day, maybe my premises were wrong. The question isn't: Why is Paulo Coelho an exception? It's: Is he even an exception?

Why is online piracy bad? Traditional piracy was bad because it necessarily excluded. Online piracy is different--it doesn't exclude. So there's a distinction between traditional piracy and online piracy. Is online piracy, then, so to speak, a misnomer? Why do traditional books cost? Publishing, producing the physical book. How much of the price accrues to the author or artist? So since online piracy rids us of the middlemen, ie the publisher, bookbinder, then we should pay only the author or artist. So the cost should be dictated only by the mental labor. But then again, who really deserves to be paid over and over again based on work they did in the past, often once-off? Why don't we pay architects again and again for the buildings they design that are used repeatedly by different people who inhabit or seek shelter in them?

But how much does the average author earn under the traditional scheme anyway? (According to an online comment, 8.5% of the cover price of the book.) How much does J.K. Rowling earn? Are the earnings or the profit what drives them? What exactly drives them? What drove the likes of: Tolstoy? Flaubert? Proust? Joyce? Pushkin? Shakespeare?

Why is on-line piracy good? Free publicity. Out-of-print material (so the demands of the consumer are not subject to profit-making or cost-effective considerations).

How are books different from music? SOPA Why is Paulo Coelho an exception? Is he even an exception? Extrapolation from Coelho's case--piracy as a way to winnow out real talent first, then publish in traditional book form?

How about library book sales and thrift stores? The earnings don't accrue to authors either.

What if the author is dead? Whose labor is it supposed to be then?

The problem of quality books that are appreciated by few--this often results in out-of-print books. The problem is the assumption that high demand always equates to high quality.

-- EugeneThong - 12 Oct 2012

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