Don’t Copy That Floppy

by Stephan Kinsella on December 21, 2010

This is great intellectual properganda (h/t Manuel Lora):

but I prefer Nina Paley’s Copying Is Not Theft:

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Dr. Q December 22, 2010 at 7:00 pm

Don’t forget the lesser known sequel: http://www.youtube.com/watch?v=hUCyvw4w_yk

Remember, kids, if you engage in piracy, then your mother will be brutalized at the hands of a SWAT team.

Barry Tone December 28, 2010 at 7:22 pm

Come on now . . . I was taught that the definition of stealing was taking something that doesn’t belong to me. How silly to suggest that a bicycle can just replicate itself as if there were no cost or investment to the person copying it whatsoever. While it is true that water in a water collection system will replace itself, a cutting off my lilac bush will regrow, or the turf in my yard will regrow . . . taking any of these items without my permission is still stealing. The idea that now we both will have a lilac bush or the fact that I will still be left with the same amount of water, or turf does not negate the fact that the act of taking something of mine without my permission is still stealing.

I create sound recordings for a living. If you hear one of my recordings and wish to copy it, by all means I encourage you to do so. You are welcomed to hire the musicians and have them record each musical part just as I had them do for me, as well as hire the engineers and other technical people required to mix and master the performances onto a tangible format just as I did. Now that is the real definition of copying. What you may not do however is take my finished product of which I’ve spent several thousand dollars and other valuable resources and simply take it for free with no investment and without my permission.

There is no doubt that the reach of copyright law has broadened beyond what is reasonable, but stuff like this only serves to frame people who oppose this trend as extremist cranks. I never like when analogies between real property and intellectual property are made by either side of the issue. It’s like comparing apples to oranges yet we continue to grant credence to these disingenuous media bites.

In my view, much of the problem lies within a lack of distinction in the copyright code between IP and products. The law treats products such as sound recordings, books, etc. the same as it does the ideas were used to create them. Bottom line is that pigs don’t fly and bicycles don’t magically replicate themselves either.

Stephan Kinsella December 28, 2010 at 9:15 pm

I don’t think you grasp the argument. You can’t make it be “taking” or “stealing” just by using those words. You wrote, “What you may not do however is take my finished product of which I’ve spent several thousand dollars and other valuable resources and simply take it for free with no investment and without my permission.”

It’s NOT TAKING anything from you. You still have it. This is apparently difficult for some people to see.

Barry Tone December 29, 2010 at 10:16 am

Perhaps your assessment is correct in stating that I don’t have a grasp of the argument, however I don’t believe that to be the case. It’s not that I don’t grasp the argument, it’s not an argument that is all that unique. It’s just that I don’t agree with the argument in its entirety. The same argument in reverse has been made by the music and film industries. How can anyone forget those pathetic “You wouldn’t steal a car”, etc. , etc., etc. ad nauseum, PSAs.

To suggest that it is “NOT TAKING” anything from me in my opinion is rather bizarre. When someone “copies” one of my sound recordings they are indeed TAKING SOMETHING. To say they are NOT TAKING anything is flat out incorrect at least in the literal sense. It seems to me that you are confusing the word “taking” with the word “depriving”. It may seem like a matter of semantics here, but I think in this case there is a very important distincntion that needs to be made. The only part of the question that remains unanswered is as to whom they are taking it from.

Obviously in the case of a sound recording you can take a copy and it will not deprive me in any way of possession of the original sound recording. However it does deprive me of the income that I would have received had you purchased the recording and at the very least, dilutes its commercial value.

Now here’s the rub, if you are suggesting that the person “copying” my sound recording is not taking it from me, then indeed I agree that I don’t have a grasp of the argument.

Nevertheless I’d be curious as to how you would address the argument that I make for the water collection system. To elaborate, I have purchased some waterproof materials and constructed a water collections system similar in form to that of a rain barrel, which I intend to use to collect rain water. Just like a sound recording, this rain barrel will always replenish itself as long as it continues to rain. Trespassing issues aside, if a person where to enter my property and take a jug of water from my rain barrel would you consider this to be something other than stealing?

In my view, the water in that rain barrel has become my property to do with as I wish. If I want to let it spill over onto the ground that should be my prerogative, and this is where I think you don’t grasp my argument. It is the actions of the individual who’s taking the water (or sound recording) that I’m questioning. Whether or not the rain barrel replenishes itself with water in no way changes the way in which the individual dipping his jug into my rain barrel. The action remains the same, but my guess is that you would suggest that what would define the action as stealing would be solely based on whether or not the rain barrel would replenish itself, or stated another way, depending on the value of the contents of the rain barrel.

To summarize, my point is that when I decide to create a sound recording of a musical performance, I do so with the intent of selling the sound recording. The sole purpose of my business model is to sell products and not give them away. To say that anyone has a right to copy my sound recordings without my permission is to say that I have no rights at all in that sound recording. It says that I have no right to earn a profit from my labor or even recover my investment for that matter.

Stephan Kinsella December 29, 2010 at 10:53 am

“When someone “copies” one of my sound recordings they are indeed TAKING SOMETHING. To say they are NOT TAKING anything is flat out incorrect at least in the literal sense. ”

It’s not the same kind of taking as when I take your bicycle. If I take it from you, you no longer have it. tha’ts why it’s stealing. That’s why it’s a harm.

If I “take” your song, I am just using information to do something with my own property, while you are still able to do the same. So you are at best equivocating by using the same word with two senses.

By your usage, if I make a canoe because I’ve heard of the idea of making a canoe, I’m “taking” the information from someone else. But all action is guided by knowledge. So that means every action I perform, insofar as it uses information that someone else came up with, is a “taking”. In other words, every action is theft, and to avoid this immorality we should all just be still and the human race would die out.

Barry Tone December 29, 2010 at 1:58 pm

“It’s not the same kind of taking as when I take your bicycle. ” Well it appears that you concede the point that it still is “taking” albeit not the “same kind” of taking, but nonetheless it is still taking.

Also I think you might be oversimplifying the argument. As you are aware there are two separate copyrights in a song, the copyright in the musical composition and the separate copyright accompanying the sound recording (derivative work). My argument is not directed toward defending the rights in the musical composition itself, my argument is to defend the right in the sound recording. In most cases, I am not the rights holder of the musical compositions that I record. I must acquire a license from the rights holder of a composition to even make a sound recording of it. It would be a stretch to the highest degree to suggest that there is information to be acquired in the sound recording itself. The information is contained in the musical composition. The problem here lies within the fact that you can’t just take the idea (musical composition) without taking the sound recording of it as well.

As a result, I think you have misunderstood my concern. As a big believer and student of Mises, I agree that all action is guided by knowledge. Having said that, in your canoe analogy you seem to suggest that my usage implies that I would deny you the right to make your own sound recording (canoe) which I am definitely not implying in any way. I’m not suggesting that you shouldn’t be able to make your own canoe. In fact if you reread my previous comments you will notice that I actually encourage the use of my ideas of my recorded performances to make your own sound recordings. But the operative words here are to “make your own” and not to take a copy of mine (that is of course unless you think that the sound recording isn’t mine to begin with) without my permission. If it weren’t due to the fact that we don’t own the rights to most of the musical compositions, all of our sound recordings would have a CC (Creative Commons) copyright.

While all of these theories regarding sharing, etc. can be reasoned by reasonable men and women, I experience a very different reality. In my industry, there are only two remaining major competitors other than my own company, and even at that our sales have plummeted to just over 30% of what they were just 3 years ago. This is amidst an exploding market which is larger now than it has ever been!

If you are interested in seeing first hand what I am talking about, I will be more than happy to introduce you to my world and after having read your book (which by the way I very much enjoyed, and was in agreement with most of your positions), I am convinced that at the very least you will walk away with some other things to consider.

Stephan Kinsella December 29, 2010 at 2:09 pm

“It’s not the same kind of taking as when I take your bicycle. ” Well it appears that you concede the point that it still is “taking” albeit not the “same kind” of taking, but nonetheless it is still taking.

I am conceding nothing. I am going with your imprecise alternate meaning of “taking” of it to describe two unalike things, and emphasizing that coining your own terms or uses of words is fine so long as you are careful not to lapse into equivocation, or use this as a disingenuous trick or to confuse the issue or muddy the water.

Consider this. Most people think of a “taking” as when you take something FROM someone so that they no longer have it. Thus such a taking–call it taking1–is a negative term, something people frown upon.

Now, you use the same word “taking” to refer to an action where a person just uses information to guide his own use of his own property; an action where the person who originated the information still has his information. Call this taking2.

Then you call them both taking, and try to use the negative associations of taking1 to sneakily “conclude” that taking2 must be bad too. This does not follow. It’s disingenuous and equivocation. Not saying you are doing it on purpose, but fuzzy thinking and overuse of metaphors and use of imprecise language can lead to this. You can’t just keep asserting when nothing was taken from the “owner.”

I’m not suggesting that you shouldn’t be able to make your own canoe.

Yes, you are; I can’t use the pattern of info in your song to impattern my ipod, say, to store this pattern. That is the same thing.

the operative words here are to “make your own” and not to take a copy of mine

It’s not taking it. You still have your song and pattern and info.

Barry Tone December 29, 2010 at 6:24 pm

You say that “Most people think of a “taking” as when you take something FROM someone so that they no longer have it. Thus such a taking–call it taking1–is a negative term, something people frown upon.” I can assure you that I don’t think of the word “taking” in such negative terms. I’m not sure how you can conclude that “most people” think of it that way as it seems to me to be such a very narrow definition of the word. I personally have never thought of that word in such limited and negative terms, but I’ve always used it in much broader terms such as someone gives me a pen and I take it, or I take an orange from the fruit bin and purchase it at the checkout, etc. Taking without one’s permission is also a use of the word, which I’m sure that I’ve used but it certainly earns no priority in my vocabulary.

You state that “Now, you use the same word “taking” to refer to an action where a person just uses information to guide his own use of his own property; an action where the person who originated the information still has his information. Call this taking2.” That is simply your interpretation of what I said, the purpose of which appears to be to build your case in your follow up paragraph . . . “Then you call them both taking, and try to use the negative associations of taking1 to sneakily “conclude” that taking2 must be bad too. This does not follow. It’s disingenuous and equivocation. Not saying you are doing it on purpose, but fuzzy thinking and overuse of metaphors and use of imprecise language can lead to this. You can’t just keep asserting when nothing was taken from the “owner.”” This is a total mischaracterization of what I stated.

Nevertheless as previously stated, I’m not really interested in a debate over semantics and if my use of the word “taking” causes you any discomfort then I shall refrain from its use. My interest is not to annoy you or make you uncomfortable in any way, nor discourage useful debate. Let’s be clear however that making a copy of a sound recording places a copy of that work into that person’s possession, regardless as to whether or not I still have my own copy intact. I think that we would both agree on this. We can use a word other than take. Perhaps acquired or something similar, but the bottom line here is that irrespective as to what word you use to describe it, the fact remains that if you copy my sound recording at the end of the day you are now in possession of an exact copy of a sound recording which cost me several thousand dollars to produce, but at no cost to you. If you prefer not to call this stealing then that’s okay too, call it what you want but please help me understand how you justify your acquiring this copy for free when it has cost me thousands to produce.

As far as your response to my statement that “I’m not suggesting that you shouldn’t be able to make your own canoe.”, I can’t for the life of me understand how you’ve come to your conclusion. I don’t know what you mean by “using the pattern of info” in my song. First of all, I am not preventing you from creating your own sound recording (canoe) from the exact same materials from which I did. If you want to purchase these same resources, then by all means go ahead and do so. If you want to copy the design of the canoe (musical composition), then go right ahead and do so, however don’t expect me to provide you with the materials to manufacture the actual canoe (sound recording) itself. You must go out and purchase them yourself. And if impatterning your ipod is your main concern, I wholeheartedly disagree with you. NOONE is preventing you from doing any such thing. You can very easily impattern your ipod by going on to iTunes and for 99 cents acquire a copy.

Stephan Kinsella December 29, 2010 at 6:40 pm

“seems to me to be such a very narrow definition of the word. I personally have never thought of that word in such limited and negative terms, but I’ve always used it in much broader terms such as someone gives me a pen and I take it, or I take an orange from the fruit bin and purchase it at the checkout, etc. Taking without one’s permission is also a use of the word, which I’m sure that I’ve used but it certainly earns no priority in my vocabulary.”

You seem to be missing the point entirely.

“Let’s be clear however that making a copy of a sound recording places a copy of that work into that person’s possession,”

You can’t “possess” a sound recording in abstract. YOu can possess material objects like a CD. If I download an MP3 file this is just digital information that is stored on my own media.

“Perhaps acquired or something similar,”

How about learn? Copy?

” but the bottom line here is that irrespective as to what word you use to describe it, the fact remains that if you copy my sound recording at the end of the day you are now in possession of an exact copy of a sound recording”

No–I have a media that has impatterned on it someow a string of 1s and 0s that is similar or identical to the string of 1s and 0s stored on one of your pieces of media. Like, if I comb my hair like you do, we both have our hair combed the say way. I “took” your haircut from you; I “stole” your hairstyle, I suppose.

” which cost me several thousand dollars to produce, but at no cost to you.”

Relevance?

” If you prefer not to call this stealing then that’s okay too, call it what you want but please help me understand how you justify your acquiring this copy for free when it has cost me thousands to produce.”

Depends on how I acquired it.

“As far as your response to my statement that “I’m not suggesting that you shouldn’t be able to make your own canoe.”, I can’t for the life of me understand how you’ve come to your conclusion. I don’t know what you mean by “using the pattern of info” in my song. First of all, I am not preventing you from creating your own sound recording (canoe) from the exact same materials from which I did. If you want to purchase these same resources, then by all means go ahead and do so. If you want to copy the design of the canoe (musical composition), then go right ahead and do so, however don’t expect me to provide you with the materials to manufacture the actual canoe (sound recording) itself.”

You are conflating the information with the media. Suppose a buddy emails me an MP3 file. I now “have” it. Why can’t I use it? I have a USB drive whcih has a string of 1s and 0s on it. Why can’t I play it on my stereo? Why can’t I offer to play it for people or make copies of it for them if they pay me? How does this violate your property rights?

Barry Tone December 29, 2010 at 9:38 pm

You can’t “possess” a sound recording in abstract. Says who? Just because something is in abstract form does not mean it cannot be possessed. At the risk of being accused of equivocating, dictionaries are full of examples that include definitions of possession in abstract form.

If I download an MP3 file this is just digital information that is stored on my own media. Yup . . . and your body consists of 90% water and 10% of other trace chemicals.

No–I have a media that has impatterned on it somehow a string of 1s and 0s that is similar or identical to the string of 1s and 0s stored on one of your pieces of media. Like, if I comb my hair like you do, we both have our hair combed the say way. I “took” your haircut from you; I “stole” your hairstyle, I suppose. . . . You can’t be serious, but I’ll respond anyway. What you have is a file containing a series of 1’s and 0’s that is identical to a file which I created that contains this same pattern of 1’s and 0’s. This pattern of 1’s and 0’s is not a random collection of 1’s and 0’s nor did it just “somehow” appear in your file that way. The pattern was created by way of a digital process that converts audio signals to a series of 1’s and 0’s that can be interpreted by an electro-mechanical device that is capable of reversing the process.

As far as this haircut business, now who’s equivocating? Are you really going to compare mimicking the way someone combs their hair with creating a fully orchestrated sound recording?

” which cost me several thousand dollars to produce, but at no cost to you.”

Relevance? . . . as a lawyer you already know the relevance of this, but in a nutshell it speaks in part to the value of the product as well as in part to the damages (outside of statutory) which can be recovered.

“You are conflating the information with the media.” I don’t believe that is the case at all. “Suppose a buddy emails me an MP3 file. I now “have” it. Why can’t I use it?” The short answer is because it is illegal as with the rest of the questions in this paragraph. A better answer is that in this case not only is it illegal, but it should be illegal as well. If your buddy acquired that MP3 file illegally then you are in receipt of stolen property. How would you know if that file was obtained illegally or not? What if it was copied from one of my CDs that contained a shrinkwrap license which forbade the copying or sharing of these files under any circumstances? Should copyright infringement be a “strict liability”, maybe, maybe not, but it is.

“I have a USB drive whcih has a string of 1s and 0s on it. Why can’t I play it on my stereo?” You can if you pay for the right to do so. You shouldn’t otherwise have the right to make use of my labor and investment for free.

Why can’t I offer to play it for people or make copies of it for them if they pay me? How does this violate your property rights? . . . You can play it for people without my objection, however you can’t profit from my labor, that is theft of the highest degree. Nobody would be employing your services for your ability to burn data onto a CD, but rather for MY content that is on that CD of which you had no part in creating.

How does this violate your property rights? Quite simply. The content represented by that pattern of 1’s and 0’s that you often refer to is a result of my labor and investment. That pattern of 1’s and 0’s didn’t just randomly appear in that order, they were strategically placed in that order through my efforts. Why should there even be a question as to whether or not I should have the right to control the fruits of my labor and investment.

There are a number of copyright issues in my view that should be addressed even though I know in my lifetime I’ll probably never see resolved. I’ve been in the music business for over 45 years and have seen a lot of shenanigans in that time. I won’t take this opportunity to name drop but let’s just say I’ve probably been in the company of just about everyone in this biz who is considered to be of any importance, and with that I have firsthand knowledge as to just how corrupt this industry is.

It is very difficult for someone like me who shares more of your views (although it may not seem that way from these posts) than I do of my RIAA flag waving peers. I am always looking for ways to make a logical case for why we shouldn’t be following the RIAA path, but I can’t present an argument to my peers which states that the their content is really nothing more than a bunch of 1’s and 0’s in a file on some material object. I can’t make that argument because I don’t believe it myself. As a libertarian, I do scour websites and opinions that are founded in libertarian thought, and my opinions are constantly evolving as a result. Oddly enough, I find just as much diversity of opinion amongst libertarians than I do the rest of the world, but certainly I benefit from all of it including exchanges such as this.

Stephan Kinsella December 29, 2010 at 10:26 pm

You can’t “possess” a sound recording in abstract. Says who? Just because something is in abstract form does not mean it cannot be possessed. At the risk of being accused of equivocating, dictionaries are full of examples that include definitions of possession in abstract form.

You cannot possess information without it being stored on some media–brain, tape, USB drive, whatever. And that means you really only possess the media, impatterned a certain way.

What you have is a file containing a series of 1’s and 0’s that is identical to a file which I created that contains this same pattern of 1’s and 0’s. This pattern of 1’s and 0’s is not a random collection of 1’s and 0’s nor did it just “somehow” appear in your file that way. The pattern was created by way of a digital process that converts audio signals to a series of 1’s and 0’s that can be interpreted by an electro-mechanical device that is capable of reversing the process.

Yes, so what? So what if it’s not random? No information is random.

” which cost me several thousand dollars to produce, but at no cost to you.”

Relevance? . . . as a lawyer you already know the relevance of this, but in a nutshell it speaks in part to the value of the product as well as in part to the damages (outside of statutory) which can be recovered.

Tha’ts not relevant to what the law *should be*.

“You are conflating the information with the media.” I don’t believe that is the case at all. “Suppose a buddy emails me an MP3 file. I now “have” it. Why can’t I use it?” The short answer is because it is illegal as with the rest of the questions in this paragraph. A better answer is that in this case not only is it illegal, but it should be illegal as well. If your buddy acquired that MP3 file illegally then you are in receipt of stolen property.

Information is not property. More question-begging.

“I have a USB drive whcih has a string of 1s and 0s on it. Why can’t I play it on my stereo?” You can if you pay for the right to do so. You shouldn’t otherwise have the right to make use of my labor and investment for free.

Why?

How does this violate your property rights? Quite simply. The content represented by that pattern of 1’s and 0’s that you often refer to is a result of my labor and investment.

So what? So waht if it ‘represents” your “labor” and “investment”? What does this have to do with anything? Where do libertarian property rights say you own patterns of information that “represent” (whatever that means) your labor or investment?

That pattern of 1’s and 0’s didn’t just randomly appear in that order, they were strategically placed in that order through my efforts. Why should there even be a question as to whether or not I should have the right to control the fruits of my labor and investment.

Because you have the right to control your property, but not information. If you use your labor to make a given scarce resource more valuable, then you own the resulting transformed thing, and can do what you want with it. That does not imply you own your labor, or that you own the value in the thing, nor that you own the patterns the thing is fashioned according to.

Keith Hamburger January 2, 2011 at 2:05 pm

So, if, as Barry contends, “taking” his digital electronic product costs him legitimately earned income that he could have received if one had bought his product, how is the value of that taking accounted for? How does one derive a price of an infinitely reproduceable product?

The market sets a price at equilibrium (which Austrian economics teaches us is approached but never actually reached, but that is another discussion) for the market clearing price. That is the price where buyers of the product will just take all of the product available.

If there is an infinite supply of a given product, what is the “market clearing price”?

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