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V for Vindication: Justifications for Piracy and Copyright

This follow-up to “The Split (or How The Law Can Learn To Stop Modern Piracy And Illegal Downloads)1 aims to explore the details of the philosophical rationale of the modern state of copyright legislation, and the validity thereof within the film industry. A brief description of the history and evolution of copyright can be found in the original article. However this article aims to focus specifically on the theoretical underpinnings, juxtaposing the competing justifications of piracy and copyright legislation, specifically in the context of the film industry.

The more legitimate justifications for piracy can be whittled down to laissez-faire anti-monopolistic liberalism (the idea that public utility requires that the productions of the mind should be diffused as wide as possible which can be traced back to the 16th/17th Century),2 and the utilitarian value it may actually bear to creators. Copyright legislation on the other hand seems to be justified on the basis of its aim to protect the economic and moral interests of authors. In theory, both these warring justifications may be valid – but this subsection aims to look at them in a practical light, illuminated by facts, statistics, and practices from the film industry in order to determine which theoretical justification is best aligned with reality.

Laissez Faire Liberalism and Utilitarian Value

It has been suggested that the industry, and society as a whole, benefits from the freedom of business and information, which is facilitated by piratical action. This is in stark contrast to the pro-copyright campaign that aims to equate piracy with theft, arguing that piratical activities effectively steals from the gross revenue of commercial films and infringes on the meritocratic entitlement of its creators. In truth, although the concept of “meritocratic entitlement” still endures, the popular opinion that piracy directly reduces a film’s potential gross revenue has generally been discounted with films like The Dark Knight,3 Avatar,4 The Hobbit, Django Unchained,5 and many more being both pirated and profitable with record-breaking numbers. In fact, it is impossible to find cases where commercial failure was a result of piracy. For instance, despite the fact that 47 Ronin,6 the second largest box-office flop of all time, was the most pirated film the weeks following its release,7 its commercial failure is attributed not to piracy, but to its poor critical reviews, lack of authenticity, opening date, casting, and excess time in post-production.8

In fact, it may be argued that movie piracy has a positive impact on the quality of films released. For instance, it may be argued that the reason behind the successes of The Dark Knight and Avatar was because they were so ‘incredible’ that people felt they had to see it in the theatres. This was in part attributed to the fact that the films were shot in IMAX and used revolutionary 3D technology. The film industry sells an experience, and piracy raises the bar for them, increasing non-price competition, forcing them to create an experience that is more unique and spectacular – an experience that people would be willing to pay for. This argument shows that the historic anti-monopolistic justifications of piracy are still valid in light of the current realities of the film industry.

Furthermore, piracy may actually be of true direct value to creators within the film industry. Piracy have become so commonplace, that the industry itself, particularly independent filmmakers, actively uses them in a manner similar to that employed by Issac Newton and Alexander Pope to publicise their early works.9 As Winans elaborates, “The torrent community spread [her movie] more effectively than any decent-budget ad campaign could have”, keeping the film out of obscurity.10 Other industry advocates of piracy, such as King – director of Steal This Film, acknowledge that for smaller, independent films, piratical distribution is more sensible financially.11

Some advocates, such as Neij of PirateBay go so far as to argue that online piracy is in fact a precursor for a business model that could largely benefit big Hollywood companies. He argues that Hollywood is missing an opportunity, suggesting that if movie and music industries set up their own torrent sites and monetize it through advertisements, “we would be out of business”.12 Such a model is not so outlandish. Hulu, for instance, successfully relies on a similar model.

Conversely, it could be argued that the studios, producers, and distributors behind the film should be free to disseminate their work in any way they see fit, and not be strong-armed by piracy into a particular mode of distribution. Despite this, it is not too farfetched to believe that piracy could be so beneficial that it is in fact justified. Could the fact that an illegal act benefits a specific class, and potentially the industry as a whole, justify it and therefore render the law itself backward and potentially obsolete, ultimately suggesting that copyright legislation is driven by primitive and possibly out-dated understandings of property and entitlement? This is a more elemental jurisprudential question about the nature of law as a whole, whose breadth extends past the remit of this article.

Protection of Authorship

In truth, describing the current understanding of property and ownership in the context of copyright legislation as ‘primitive’ and ‘out-dated’ is misleading. The values and rights that piracy legislation aims to protect are ancient – but they are absolute as opposed to ‘out-dated’.

Such an argument goes further than simply suggesting that piracy can never be justified. It suggests that the protection of the authorship of creators is of an actual substantive benefit that outweighs any alleged benefits piratical practices could have. One may argue that anti-piracy legislation consequently encourages learning, research, and creativity. If anti-piracy legislation were effective, the profits of filmmakers would arguably be maximised, which could be argued to be a further incentive to create more films. That may be true, but the problem therein is that this would be an incentive for the creation of films as they are, not for research, innovation, and creative advancement. Conversely, as established earlier, piracy itself acts as an incentive for movies to become ‘more unique and more spectacular’.

On the other hand, considering the difficulty in implementing and enforcing anti-piracy legislation, it could be argued that the mere presence of anti-piracy legislation creates a nominal safeguard, which, even though it ultimately fails, may be sufficient to encourage a creator to create. This could explain why film production outside Hollywood, particularly in the UK, and the production of more experimental ‘art-house’ movies, are on the rise, despite the undeniable effects of piracy.13 Ultimately though, the actual substantive impact of anti-piracy legislation seems to be limited, with some writers in fact suggesting that the current anti-piracy legislation and case law tends to be counter-productive, encouraging rather than discouraging piracy.14

Although it may also be alleged that anti-piracy legislation has some success in protecting the “moral” interests of creators, within the film industry, this is really a non-issue as this refers to the actual content of the pirated work, not its mode of distribution. Firstly, the huge budgets that would be required to make spurious copies of movies make it impossible. Furthermore, as audiences of pirated products seek authenticity, there would be no economic demand for spurious copies. And finally, it is almost impossible for a film to be used for anything outside of its creator’s spiritual interests. The purpose of pirates and filmmakers are the same – to keep the film out of obscurity. It could be argued that movies which are ‘leaked’ before their release date may breach the maker’s moral interests,15 as at that point in time the filmmaker only intended for a select group of people to watch it. However, although pre-release piracy may be seen to “undermine the enormous efforts of the filmmakers and actors”,16 whilst arguably having “no meaningful impact on the box office”,17 this breach of the maker’s moral interests is not as a result of piracy per se. Rather this is due to a breach of trust by the select group of people the film was disseminated to, or a breach of privacy if the pirated copy was sourced through a hacking. Piratical distribution in and of itself cannot be seen as infringing on the creators moral interests.

Although on a balance of the two theoretical standpoints above laissez-faire liberalism seems better aligned with the realities of the film industry, piratical action being illegal is still certainly the conventional approach, and some value lies in this. Therefore, although these justifications are polar opposites and they propose different ideas, in reality, the law has to find some balance between the two. The reality of piracy, and its legality, within the film industry is not black and white, but rather, it is Technicolor. For instance, in Canada, distinctions have been made between downloading and uploading as well as between the different forms of media being pirated – with music piracy for instance being treated very differently from film piracy. Although the anti-piracy law in Canada has been heavily criticised,18 maybe a similar standpoint needs to be taken in England and Wales, and elsewhere in the world.

Image by philentropist Notes:

  1. Ordinary Times, August 4, 2016. []
  2. Donaldson v Beckett, (1774) 1 E.R. 837. []
  3. Ernesto, “Top 10 Most Pirated Movies of 2008” (TorrentFreak, 11 December 2008), accessed 6 December 2014. []
  4. Ernesto, “Avatar Crowned The Most Pirated Movie of 2010” (TorrentFreak, 20 December 2010), accessed 6 December 2014. []
  5. Jessica Derschowitz, “‘The Hobbit,’ ‘Django Unchained’ named most pirated films of 2013” (CBS News, 31 December 2013), accessed 6 December 2014. []
  6. “47 Ronin (2013) – Box Office Mojo” (Box Office Mojo, 4 December 2013), accessed 6 December 2014 []
  7. Gabriela Vatu, “’47 Ronin’ Is the Week’s Most Pirated Movie” (Softpedia, 24 March 2014), accessed 6 December 2014. []
  8. Kirsten Acuna, “Report: Why Keanu Reeves’ ’47 Ronin’ Was A Huge Box-Office Bomb” Business Insider (Seattle, 3 January 2014). []
  9. Adrian Johns, Piracy (The University of Chicago Press 2009) ch. 3. []
  10. Anthony Kaufman, “Piracy May Be An Indie Filmmaker’s Best Friend: Discuss.” (Indiewire, 12 October 2011), accessed 2 July 2014. []
  11. Ibid. []
  12. Ibid. []
  13. Geoffrey Macnab, “Film Production Levels on the rise” (ScreenDaily, 9 April 2014), accessed 20 October 2014. []
  14. Rebecca Giblin, Code Wars: 10 Years of P2P Software Litigation (Edward Elgar 2011). []
  15. Brent Lang, “‘Expendables 3’ Flop Shows Danger of Pre-Release Piracy, Expert Says” (Variety, 18 August 2014), accessed 24 November 2014. []
  16. Christine Spines, “‘Wolverine’ leak: Fox issues a statement vowing to prosecute” (Entertainment Weekly, 1 April 2009). []
  17. Friedman Josh, “Lions Gate is investigating ‘Hostel’ pre-release piracy” (Los Angeles Times, 1 June 2007. []
  18. International Intellectual Property Alliance (IIPA), ‘2013 Special 301 Report On Copyright Protection And Enforcement’, 8 February 2013, accessed 5 December 2014. []

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Budding legal theoretician currently doing his time as an auditor. Diverse interests ranging from the aforementioned law to film, literature, and art. Don't get him talking because he'd probably never stop.

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63 thoughts on “V for Vindication: Justifications for Piracy and Copyright

  1. One thing that I think about whenever this discussion comes up is our very own David Ryan. Once upon a time, David Ryan directed and produced some high quality, erm, adult fare.

    These were movies that involved talking to two beautiful, if normal, people and interviewing them about how they met, how they fell in love, how they still love each other… and then we watched them have sex with each other.

    This was not some exploitation pr0n. This was quality stuff, that was female positive, male positive, sex positive, love positive, and all sorts of positive.

    Something you’d watch with your significant other without shame.

    He stopped making these films because people stole them and law enforcement didn’t help him because they enforce these laws for Disney but they don’t bother for pornographers because hell with them anyway.

    He builds boats now.

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      • Same way you can’t pirate the experience of watching a great affecting movie on a 6-storey tall IMAX screen – especially when it was made to be watched in that way. Trying to truly pirate that would be like trying to experience cruising on a sailing catamaran on the open ocean through a VR Headset.

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        • Yeah I guess we do. But to be honest the adult industry is an entirely different beast, as is music and gaming and all other media as the institutions that drive them are structured much differently. I have heard of actual negative effects of piracy on the commercial performance of music and games but haven’t looked into these myself.

          Specifically though – due to the nature of the institution of cinema and the motivation of its creators, there is no example of a conventional film failing solely due to piracy.

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            • Interesting. Ummm… I’d say the fact that more films are made generally year on year could mean that it is unlikely that piracy affects the industry in this way. Again this is a generalisation as it doesn’t account for specifics like genre, studio-backing, star power, budget, etc. However, as noted above, independent and art house films did go up despite piracy. And it is logical to suggest that piracy could be acting as an incentive to produce more innovative and ambitious films than ordinarily would be…

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                • Ordinarily I would dispute the legitimacy and significance of that statement. However, even if it is true, I fail to see how it is a counterpoint to my statements. If anything you are suggesting that there are other factors more important and more impactful on film production than piracy and therefore in agreement with the point of that comment and the above article as a whole.

                  Also… on a side note… I would hardly call French cinema “whatever”. France is in fact largely considered to be the birth place of cinema (esp. considering the grandfather of cinema himself – George Meliés), the home of the most significant film festival globally, and consistently puts out the most critically acclaimed and appreciated films. In terms of film, it is famed for a lot of things – it’s tax credits and rebates not especially being one of them (unlike some states in America).

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                  • I wasn’t trying to suggest that French cinema was horrid. Simply that the government gives free money to anyone who claims to be making a film, even if it doesn’t actually get released.

                    When arthouse films need not sell tickets in order to make a profit, you’re outside the realm where piracy is really relevant, aren’t you? Mistaking government welfare projects as functional businesses blurs your entire point.

                    If you need not make a profit, would you care about piracy at all?

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                    • Oh in that case this is actually a brilliant comment, especially on that last point. That is the entire thrust of the article. The film industry functions in a way that means that it is not necessarily a conventional business for many significant parties – i.e. Profit is not necessarily the only end goal (esp. re art house and low budget indies). Hence these parties “need not” make a profit. This is a point that has been beaten to death in the article and comments.

                      What I do find most interesting in your comment though is the parallel you draw between government welfare projects and functional businesses. It is quite rare (and in fact unnecessary) for a government to attempt to encourage what is already a functional business. Government incentives and intervention are more prevalent with regards to merit goods – items where the need of society to have it outweighs the need/ability for society to pay for it. Could cinema be considered a merit good? Could the fact that government welfare projects exist in this field be proof of this? And does this prove that the situation of cinema in society is not purely commercial – meaning there are many other metrics beyond the commerciality of a film to judge its success (and consequently to judge the impact of piracy) by? Lots of food for thought.

                      Thanks…

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                      • “Could cinema be considered a merit good? Could the fact that government welfare projects exist in this field be proof of this?”

                        I think it is proof that the people in positions to make such decisions feel it is a merit good. That does not actually tell us if it is or not.

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    • It’s been a while since that series of articles, but piracy wasn’t the only culprit in his decision to change careers IIRC. He also faced discrimination from various “mainstream” film distribution and display venues that would not distribute, promote or screen his works, because his films were uncomfortably close to porn (in their view).

      Obviously piracy eating up whatever meager profits he could make selling direct to customers didn’t help, but I don’t think it’s fair to say that piracy was the ONLY obstacle he faced. He kind of got hit on both sides there due to the nature of his art, since if he would have been allowed to freely promote/sell his product the way the makers of, say, The Blair Witch Project can, some amount of shrinkage from piracy maybe wouldn’t have killed him.

      But maybe my recollection is off.

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        • I’m hardly arrogating anything. No matter what happens, creators do retain some rights over their creation. What you do say is specifically noted above. The question however is: do the benefits of piracy outweigh that “right”. One may even venture to question the quality and unimpeachability of that right. In discussions about piracy these are important questions that have largely been ignored.

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  2. ” That may be true, but the problem therein is that this would be an incentive for the creation of films as they are, not for research, innovation, and creative advancement. ”

    lol. Because before Bittorrent there was absolutely nothing happening in the movies. No research, no innovation, no creative advancement between 1900 and 2000.

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    • That’s taking it to extremes but BitTorrent must be considered as an incentive for innovation. To be honest the creation and distribution of films changed massively and numerous times between the 1900 and 2000 – most notably with the increased establishment of the studio system that were by nature businesses and therefore reliant on models, formulaic productions, and predictability. If anything, this has peaked now.

      I mean, if you want to look at the span of cinema as a whole you could go all the way back to its inception and early years for instance the times of George Melies up to Chaplin and back here innovation was the very driving force of cinema (as it is during the birth of any industry). Obviously with its greater establishment routine and predictability sets in – as noted earlier. Which creates the need to further incentivise creative ambition and innovation. Piracy inadvertently is one of the many things that to some degree may satisfy this need.

      Great point though. I could write an entire thesis on the evolution of literature and cinema and piracy in parallel (actually I have! Lol) but it would be waaaay too long for this forum.

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  3. “in reality, the law has to find some balance between the two.”

    It might be a lot easier for kids to cut across my lawn to get from school to the comic-book store instead of going all the way around the block. It saves time, you can make vague statements about traffic along the road being a safety hazard, the comic-book store might see better sales because it’s more convenient to get to, maybe I could set out a lemonade stand and sell drinks to kids heading for the comic-book store.

    But, y’know, it’s still my lawn and I can decide who walks across it.

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    • But to make the analogy more accurate… You let many people cut across your yard, if they pay. In fact, your means of livelihood is payments in return for letting people cut across your yard. You expend considerable technical and legal effort to make sure that people who cut across your yard have to pay.

      Now some kids have arranged things so that they can cross without payment. The problem you face — ignoring the ethics of the kids — is whether or not you can stop the kids entirely, or whether you reduce the damage to a level you can tolerate. What the OP suggests, and I agree with, is that you can’t win the technology war or the legal war and stay in business. You have to balance tech, and legal action, and the way that you structure your prices.

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      • ” You expend considerable technical and legal effort to make sure that people who cut across your yard have to pay.”

        Actually, in the analogy, I don’t have to do a damn thing beyond put up a sign saying “private property”. The safeguards you describe are to curtail illegal activity, not something inherently required by property rights.

        “But it’s hard without those things” is not the question I’m discussing.

        “Now some kids have arranged things so that they can cross without payment.”

        Okay, and? Is crossing without payment a legal thing that they should totally be allowed to do because it’s so much better this way? If it is, then why was it ever not? What gave me the right to ever charge people for crossing my lawn?

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        • DD:

          Putting up the sign and expecting it to be obeyed is in and of itself a particular conception of property rights.

          The right to exclude is, obviously, one of the most critical components of the bundle-of-sticks we refer to as property rights.

          But there’s also a common law of easements out there, which allow people reasonable access across privately held property for any number of reasons, including: necessity, implication and prior use. So, actually, you may have to do a fair bit more than just put up the sign.

          Thus the analogy to IP. The notion that property means the absolute right to exclude, everywhere and at all times, is simply not true. Even the common law of real property is more nuanced than that.

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          • “there’s also a common law of easements out there, which allow people reasonable access across privately held property for any number of reasons, including: necessity, implication and prior use.”

            There’s a common law of easements…that defines specific carve-outs for specific purposes by specific users. There’s no “general public access to all the property” easement; easements for sidewalks will be sharply constrained to certain parts of the property, and they explicitly do not permit access to other parts. Easements for service access will also be limited to access by specific users; that I’m required to have ten feet between house and property line for fire-truck access does not mean that anyone can just wander in there if they want.

            If anything, the IP equivalent of an easement is “fair use”.

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        • If you’re in business — the subject of the OP — you can’t just put up a “Private Property” sign. That’s equivalent to Sony Pictures simply choosing to not release films (and shortly thereafter, going out of business). The sign has to say, “Private property, please pay the toll.” I concede all of the property rights implicit in that. Some number of people ignore the sign. Half of the scofflaws have, effectively, diplomatic immunity: they live in countries where the government has no interest in helping you enforce your property rights. Some of the others are six years old, and attempting to prosecute them has consequences (the record labels backed off from such cases as soon as they saw which way public opinion was running). You can build fences. You can prosecute the people organizing mass excursions across your yard. Given that (a) fences (encryption, restricted media) are only partially effective, and (b) prosecution is only partially effective, and (c) you want to stay in business, what are you going to do?

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          • “If you’re in business — the subject of the OP — you can’t just put up a “Private Property” sign.”

            ?? Sure you can, that’s what the “copyright 2016” is.

            And the issue is not “what measure does it take to ensure the rights are respected”, the issue is “if those measures are circumvented, has a crime been committed by the circumventor?”

            Like, if I put up a fence and someone jumps over it, are they committing an act of trespass, or is it just “sucks to be you, property owner, guess you need a better fence lulz”

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  4. Another argument for piracy is that there is a lot of content that content holders are not releasing to the public because they can’t monetize it enough but people really want to see it. Or their might be media from another country you want to see that has no chance of seeing commercial release on even a limited scale in your country. If media companies are going to not release content of too small commercial worth to them than people are going to find ways to watch what they want to see.

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    • “…because they can’t monetize it enough but people really want to see it.”

      If people really wanted to see it, they’d be willing to pay enough that the holders could monetize it.

      I have zero sympathy for pirates whose defense amounts to little more than, “I want this but don’t want to pay for it.” They rarely frame it that way, but that is often the case.

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      • “Its not that I want to watch or listen this but I won’t pay for it” but “I want to watch and listen to this but the content holder isn’t releasing it commercially.”

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      • If people really wanted to see it, they’d be willing to pay enough that the holders could monetize it.

        This is demonstrably not true.

        There are reasons, to be sure. I am not claiming that the rights holders are always in the wrong from their business calculation standpoint. Their goal is to monetize their product effectively, and enforced scarcity is part of that business decision.

        But it’s just not true to say “if you offer them enough money that they could profit off of it, they will give you the content”.

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        • If nothing else, the rightsholder might not *have* the infrastructure and agreements needed to *let* you pay for the content. It might be the case that they’d need three lawyers working five days each to put together the contractual language that it would take for them to not get sued by other users–some of whom may well have written contracts along the lines of “you can’t ever let anyone else have this EVER UNDER ANY CIRCUMSTANCES”–and that would be on the order of two hundred thousand dollars just to let you make a copy of that old LP.

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  5. For instance, in Canada, distinctions have been made between downloading and uploading as well as between the different forms of media being pirated – with music piracy for instance being treated very differently from film piracy.

    This is a strange comment to make.

    The law does not need to make distinctions between those two things, because there are already distinctions between those two things inherit in copyright law!

    Copyright law has never, at all, attempted to punish the person who *is given* an illegal copy. The law simply has no provision for this, and has never had one. Copyright punishes people who *make* illegal copies, not people who get those copies.

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  6. , I feel you’re working towards some sort of conclusion, so I feel I must object to some of the stuff in your *last* post, just in case that’s somehow relevant.

    Specifically, the idea that bittorrent is somehow relevant, and that it would be possible to bring a suit against makers of such software.

    The problem arises that it is extremely difficult to figure out anything that bittorrent does that is not done by almost any other piece of software on the internet.

    Right now, there are thousands of IRC channels with bots that you can message that will return pirated stuff. Is IRC server software illegal?

    There are also private FTP sites with pirated content. Is FTP now illegal?

    There are a bunch of pirate videos on YouTube. Did you just argue that *web browsers* are illegal?

    The reason that bittorrent is legal is that it is a file transfer application…just like literally *half* the applications on the internet. Skype can transfer files. Mail can transfer files.

    The supposedly unique property of the torrent protocol, and your best bet to try to hand some sort of ‘guilty of copyright infringement’ handle on it, would seem to be support of the magnet URI, which allows people, via various methods, to connect to each other and get a file without any sort of server in place, thus providing no place to target a takedown.

    But you’re going to have to make a very big leap to get from ‘I do not like how this program locates files’ to ‘This program is operating for the purpose of copyright violation’.

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    • Perhaps I was not very specific. You have identified the unique element of BitTorrent protocol that makes it distinct from other file transfer services – the magnet URI. But what I suggested was not that they target the users of the magnet URI or the people that distribute through it – but rather they target the creators and administrators of that protocol to control its use. These protocols do have numerous legitimate uses too!

      I do believe that if copyright legislation is going to be successful, it has to make the leap you suggest, yes. However, this would be a terrible thing both for reasons stipulated in that article, and in this one, and will be in the final chapter of the trilogy you quite rightly anticipate.

      Great comment by the way!

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      • But what I suggested was not that they target the users of the magnet URI or the people that distribute through it – but rather they target the creators and administrators of that protocol to control its use.

        I’m not quite sure what level of technical knowledge you have, but there are not any ‘administrators’ of the protocol, and as it’s already been ‘created’ and it’s not any sort of formal standard, the creators don’t really have any control over it for the future.

        Also, it’s not really a protocol. It’s merely a URI scheme. It is a way for publishers of content to generate a pointer to that content, just like a URL.

        The magnet URI is merely a way to use a file hash (Or, in fact, any unique ID) as a way to locate files, instead of a URL.

        It’s not even, technically, part of the torrent protocol. There is nothing stopping web browsers from suddenly supporting magnet: links, and sending clicks on them to some search site that would search for those hashes and let people download directly. (Granted, no web-based hash search appears to exist.)

        The way it actually works is that torrent clients come with, and maintain, a list of IPs that are running torrent clients, and connect to *them* and ask where they can find that file, and those IPs point them at other IPs that are torrenting the file. This is called DHT. This is actually how torrenting works internally (clients are asked for other client IPs) except DHT also keeps a listing of some other stuff and IPs of it that the client *isn’t* torrenting.

        Thinking there are ways to stop piracy via the magnet URI people is exactly like going to the people in charge of URLs and demanding that they make it where people can’t make URLs that point to pirated content. There is not any possible way that makes sense.

        If you have any sort of legal case there, it is against the people ‘running DHT servers’. The problem is a) this is literally everyone running a torrent client, b) there is absolutely no intent there, not only do they not know they are returning IPs that contain copyrighted stuff, to people who want to download that copyright stuff, it is literally impossible for them *to* know…all they have are file hashes.

        This is akin to suing Google, except *worse*. You can make the argument that Google should somehow filter searches of copyright material preemptively, and could be smart enough to somehow do that. Like filter on ‘The Avengers’ and ‘download’ and ‘full movie’ or something, block those pages. You’d *lose* that case, but you could make the argument.

        Here, the argument is that someone saying ‘Hey, do you know who has file with the MD5 hash of D41D8CD98F00B204E9800998ECF8427E?’ and me replying ‘Yeah, that guy over there said he had it.’ is somehow illegal. How the hell am I supposed to know if that’s an illegal copy of the Avenger or a Linux distro or what it actually is…a zero byte file?

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        • I’d like to believe I have a more than decent technical understanding but yours seems superior to mine to be honest – and nonetheless you have come to a somewhat similar conclusion – that the argument could be made for the use or possession of BitTorrent software, magnet links, etc to be made illegal. And if we’re going into deep criminal dissection, malicious intent need not even be a necessary mens rea. This structure would be similar to legislation against drug possession/use (note intent to distribute is only an aggravating factor – not the crime itself).

          Anyway the important thing is we are not considering specifically the technical requirements affecting the ability to police this if criminalised, although that is very relevant and will be important to discuss in light of the final chapter when it lands. The object of this piece rather is the philosophical underpinnings. The question is less so how, and more so why.

          Nonetheless… great comment! Got me thinking for a long time – and I’m probably going to spend the rest of tonight reading up on magnet URIs, MD5 hashes, DHT servers, and the intricacies of BitTorrent protocol.

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          • that the argument could be made for the use or possession of BitTorrent software, magnet links, etc to be made illegal.

            People can pass any insane law they want. The problem either the law is broad enough to outlaw *all* file transfers and searching, or it is limited to the BitTorrent protocol, and thus easy enough to avoid.

            There is absolutely no precedent in the law for making a specific communication protocol illegal. Not only does that seem like that has first amendment implications, but it is exceptionally stupid.

            Now that people have figured out the concept of a distribute network, and keeping track of file hashes, it hardly need any ‘BitTorrent’ specific thing.

            With a very quick rewrite, everything done by the BitTorrent protocol could easily be done over HTTP keep-alive connections, with XML to handle metadata and hashes. (Well, you’d have to make HTTP keep-alive bi-directional, but there’s no reason you can’t.)

            You cannot outlaw computer *protocols*. The entire concept is nonsense. If you do that, people will merely alter the applications so they uses some *existing*, other protocol to do exactly the same thing.

            All you can do is outlaw *specific behaviors* of programs. The problem is, the behavior of bittorrent programs are a) file transfers, b) searching, and c) error checking, all of which are fundamental parts of the internet.

            It’s not like DeCSS, where you can outlaw decoding DVDs.

            And if we’re going into deep criminal dissection, malicious intent need not even be a necessary mens rea. This structure would be similar to legislation against drug possession/use (note intent to distribute is only an aggravating factor – not the crime itself).

            You think it would be possible to remove *intent* from a *civil tort*?

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  7. One of the baseline, unspoken, assumptions of the “piracy is evil” crowd is that every instance of someone downloading a pirated copy of something represents a lost sale and is therefore equivalent to direct theft. But this seems to exclude the third possibility of simply not accessing the content at all.

    Imagine an alternate universe where media piracy was a practical, technical, impossibility. In such a world you either purchase the content or do without. In any market there will be a cohort who is either unable or unwilling to purchase the thing but would be interested at a reduced price or free. If there’s zero unit production cost — and that’s key to this discussion — then what is the actual loss to the producer of someone in that cohort obtaining a pirated copy versus simply doing without? In neither case is the producer going to get more money.

    My point here isn’t to assert that the industries don’t suffer losses from piracy; I’m sure they do. I’m just highly skeptical of the figures put forward describing the magnitude of those losses.

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    • “If there’s zero unit production cost — and that’s key to this discussion — then what is the actual loss to the producer of someone in that cohort obtaining a pirated copy versus simply doing without?”

      There isn’t zero production cost. There’s the opportunity cost to the creator, who might have done something else with their time and energy.

      “In neither case is the producer going to get more money.”

      And if it were merely the existence of a copy that was at issue, this argument would be valid. As what is protected is not the existence of any particular copy but the act of making a copy, then the producer (or whoever they’ve assigned the rights to) has indeed lost something when a copy is made without compensation.

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      • There isn’t zero production cost. There’s the opportunity cost to the creator, who might have done something else with their time and energy.

        Perhaps you misunderstood or I wasn’t clear. The marginal unit cost to the rights holder of the production of a pirated copy is indeed, zero. I’m not talking about theft of physical media or hacking into the servers of the production company or anything similar.

        The time and energy of the creator is a sunk cost, it’s already been expended. The opportunity cost is contained solely in the case of the individuals who obtain a pirated copy but who would, in the absence of the means and opportunity to do so,
        otherwise have both the means and willingness to purchase a legitimate copy.

        Furthermore, rights-holder is not necessarily synonymous with content-creator. There’s a great deal of currently available material under active copyright that was produced by currently deceased artists.

        And if it were merely the existence of a copy that was at issue, this argument would be valid. As what is protected is not the existence of any particular copy but the act of making a copy, then the producer (or whoever they’ve assigned the rights to) has indeed lost something when a copy is made without compensation.

        Well I guess by your lights I’m a big ole effing criminal then. Truly a despicable human being. Because I’ve got a considerable pile of CDs in a cabinet, legally purchased, that I ripped to my computer (one copy) then synced to USB stick (another act of copying, oh my!) to play on the road.

        Frankly, I find your absolutist conception of property rights when applied to IP just baffling.

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        • “The marginal unit cost to the rights holder of the production of a pirated copy is indeed, zero.”

          BZZZZZZT The value of property is not defined from its existence. Instead, it’s derived from the use of the property–and in the case of copyright, the property is “the right to make copies”, and the use is the act of making a copy. Who expends the resources to create the copy is not relevant.

          “The opportunity cost is contained solely in the case of the individuals who obtain a pirated copy but who would, in the absence of the means and opportunity to do so,
          otherwise have both the means and willingness to purchase a legitimate copy.”

          BZZZZZZT That is not what “opportunity cost” means, sir.

          “I guess by your lights I’m a big ole effing criminal then. Truly a despicable human being. Because I’ve got a considerable pile of CDs in a cabinet, legally purchased, that I ripped to my computer (one copy) then synced to USB stick (another act of copying, oh my!) to play on the road.”

          BZZZZZZT RIAA v. Diamond, space-shifting is legal fair use.

          I’m afraid you’ve run out of strikes today, my boy, and it looks like your game ends here. But thanks for playing, here’s a commemorative box of tissues as your prize for this evening!

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          • BZZZZZZT The value of property is not defined from its existence. Instead, it’s derived from the use of the property–and in the case of copyright, the property is “the right to make copies”, and the use is the act of making a copy. Who expends the resources to create the copy is not relevant.

            Uh,, no one said anything *value* of the property.

            The *marginal unit cost* is, indeed, zero to the copyright owner if *someone else makes the unit*. There is no cost per copy to them, in fact, it’s entirely possible they do not even know a copy exist.

            Also, you’re not using opportunity cost correctly. Opportunity cost is a way to talk about someone making a choice between two or more alternatives. You cannot talk about someone’s opportunity cost because *someone else* made a choice. That is not what the phrase means.

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            • “The *marginal unit cost* is, indeed, zero to the copyright owner”

              I love the part where you people repeatedly, loudly, and angrily ignore the part where I explain how the cost of actually generating the copy is not relevant to the discussion.

              “Opportunity cost is a way to talk about someone making a choice between two or more alternatives.”

              Right, the alternatives being “start a career as a creative artist” or “work a dead-end bullshit wage-slave job that I hate, and play Xbox all weekend”.

              If people are out there telling me that I don’t deserve to get paid when they obtain copies of my creative work because “it doesn’t cost anything when a copy is made” then hey, wage-slaves and Xbox it is.

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              • How many times do you get paid for a library book?
                Once, yet it can be consumed by many people, if not an infinite number of people.

                I assume that most people who balk at paying $50 for a video game would happily buy it for $5. (And that’s about the payment you’d receive if your video game was bought by a library — we can assume ten uses before it gets lost/stolen/misplaced, can’t we?)

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              • I love the part where you people repeatedly, loudly, and angrily ignore the part where I explain how the cost of actually generating the copy is not relevant to the discussion.

                The ‘cost of actually generating a copy’ is *literally* the meaning of ‘marginal unit cost’. That is what marginal unit cost *means*.

                To quote wikipedia: In economics, marginal cost is the change in the total cost that arises when the quantity produced is incremented by one unit, that is, it is the cost of producing one more unit of a good.

                And, as I pointed out, only applies when the people making the ‘unit’, aka, the copy, is actually the manufacturer. If the manufacturer is not involved at all, there is no marginal unit cost! (I guess *pirates* have marginal unit costs.)

                Admittedly, saying marginal *unit* cost is somewhat redundant.

                Right, the alternatives being “start a career as a creative artist” or “work a dead-end bullshit wage-slave job that I hate, and play Xbox all weekend”.

                No one here is actually talking about opportunity cost. No one. Not you, not Road Scholar.

                The opportunity cost you were originally talking about made the claim that, because a creator choose to create, they had an opportunity cost of other stuff they weren’t able to do.

                Which is all well and good…but as was pointed by Road Scholar (Actually he pointed out before you even brought it up, via talking about all the sunk costs!), they paid that opportunity cost *before* any piracy happened.

                Piracy can’t have anything to do with opportunity cost, because opportunity costs are paid *upfront*. They exist regardless of piracy.

                People choose to either make a living creatively, or work a normal job, and the other thing is a lost opportunity, aka, the ‘opportunity cost’. That’s what opportunity cost are…what someone *could* have done, but choose something else instead.

                The *result* of that decision is not anything to do with the opportunity cost. Opportunity cost is merely the stuff they had to *give up* when they made the decision.

                If I can spend five dollars on food, vs five dollars on a lottery ticket, the opportunity cost of the food is ‘slight chance of winning the lottery’, and the opportunity cost of the lottery ticket is ‘having some food I can eat’. I pick one, I don’t get the other. Whether I win the lottery, or if I buy food but then someone steals it, is *not anything to do with the opportunity cost*.

                Feel free to criticize pirates ruining someone’s job outcome via piracy.

                Just stop using the phrase ‘opportunity cost’ as anything to do with that.

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