Free Culture & Columbia Political Union present: Panel Discussion on Illegal Downloading

Lerner Hall at Columbia University

We're taking questions from the Net for the panel discussion below. So if there's something you'd like raised, please leave a comment here — we'll bring the comments to the panel.

(And if you submit your question via, say, a video on YouTube, we'll try our best to play it live during the panel. Yes, that's a hint!)

  • When: Wednesday, 3 December 2008, 8pm-10pm
  • Where: Satow Room - Lerner Hall @ Columbia University (see map)
  • What: Panel discussion about current law and about the future of copyright policy.
  • Who: Stanley Pierre-Louis (VP of IP, Viacom); June Besek (Prof. of Law, Columbia University); Karl Fogel (Editor, QuestionCopyright.org)

The event is free, but space is limited. Please RSVP to: decause{_AT_}softwarefreedom.org.

18 Comments

"Illegal Downloading" is an oxymoron

Can we establish that "Illegal Downloading" is an oxymoron?

I understand that 'downloading of authorised copies' has never been found to be a copyright infringement in a US or UK court of law, nor even 'downloading of unauthorised copies', since downloading has not been recognised as constituting the manufacture of an infringing copy.

This is distinct from unauthorised distribution or manufacture of copies - that may occur as a side effect of using distributive technologies such as BitTorrent. But, I'm not sure that even this has been established at court to constitute copyright infringement.

Even the making available of copyrighted works (placing files in shared folders) without authorisation has only briefly been held to be an infringement and then retracted.

Re: "Illegal Downloading" is an oxymoron

I'm not sure what the courts have said (case law may be quite varied anyway). But isn't the RIAA suing people simply on the basis of those people having downloaded, in some cases? That's not saying the RIAA is right, but if most lawyers think there's such a thing as illegal downloading, then a lot of lawsuits can be filed regardless of the legal merits.

I understand they sue those

I understand they sue those they associate with IP addresses detected to be sharing files with names that may indicate works whose copyright is held by members belonging to RIAA/MPAA that are not authorised to be freely copied.

I don't think they attempt to detect people purely downloading.

Note that those who 'download' via BitTorrent are also sharing as a side effect.

The act of 'sharing' is presumed to constitute the manufacture and distribution of a copy to the downloader, but only upon the downloader's request, when the distribution is commenced.

Without such a download in progress, the sharer is only making the file available. This is why they hire agencies to perform the download. One could say that those agencies are thus authorised by the copyright holder to authorise the manufacture of a copy when they attempt a download, and thus no infringement occurs.

Unfortunately, 99.99% of those sued doubt such finessing will hold up in court - even if they had a no win, no fee lawyer. Understandably, the RIAA is likely to vet their victims to ensure they aren't a) wealthy, b) IP lawyers, or c) law students.

"This is why they hire

"This is why they hire agencies to perform the download."

Interesting train of thought. Technically though, the copyright in this case generally prevents unauthorized distribution. The copyrights of the receiving party have no impact.

"Understandably, the RIAA is likely to vet their victims to ensure they aren't a) wealthy, b) IP lawyers, or c) law students."

Somehow I doubt this.

It seems obvious to me that both the entity unauthorized to distribute copyrighted content and the entity unauthorized to receive that content are engaging in illegal activity by transferring that content.

These legalities do not seem questionable to me. The question is whether copyright is good for artists(entities creating content) and for society. While there are obvious of examples where copyright is beneficial (ie. GPL), I would say there are a lot of cases today where the answer is no.

The challenge here is to create and promote licenses and practices that benefit both the artist and society rather than favoring one, the other, or none. What licenses and practices are available for recording artists that reduce or eliminate the issue of illegal downloading of their content?

Authorised Agency

If I'm a musician and I know you have purchased a CD (without license to copy) at one of my sessions, and I then ask you to burn a copy of that CD because I don't have any on me at the mo and I want to sell a copy to someone else, have you committed copyright infringement if you make such a copy?

Did I authorise you to make a copy by requesting you to make me one?

Similarly, does an agent of a copyright holder who requests the making of a copy of one of that copyright holder's works as a downloader (from a sharer making it available on a file-sharing system) authorise the sharer to make that copy?

Even if not, there is an element of entrapment otherwise.

The big question is actually whether the public's cultural liberty is better exploited by publishing corporations or the public themselves. And that's a no brainer, just as is the answer to the question "Is a slave's liberty better exploited by their owner, or themselves?"

NB The GPL neutralises copyright. It does not benefit from copyright. It seeks to benefit the public by removing copyright's constraint from it.

"If I'm a musician and I know

"If I'm a musician and I know you have purchased a CD (without license to copy) at one of my sessions, and I then ask you to burn a copy of that CD because I don't have any on me at the mo and I want to sell a copy to someone else, have you committed copyright infringement if you make such a copy?"

Assuming you as the musician have not signed away pertinent portions of your rights, I would say no.

"Did I authorise you to make a copy by requesting you to make me one?"

Assuming the above, yes.

"Similarly, does an agent of a copyright holder who requests the making of a copy of one of that copyright holder's works as a downloader (from a sharer making it available on a file-sharing system) authorise the sharer to make that copy?"

Was the agent granted a transferable right to distribution?

"Even if not, there is an element of entrapment otherwise."

It is only entrapment if the unauthorized distributor doesn't offer the copy first. They way systems work, the downloader merely has to ask "What can you send me a copy of?" When the unauthorized distributors reply includes the work in question, the download would only be to verify there are no barriers in place to receiving the file.

"The GPL neutralises copyright. It does not benefit from copyright. It seeks to benefit the public by removing copyright's constraint from it."

Quote from: http://www.gnu.org/licenses/quick-guide-gplv3.html
"We call this copyleft: the software is copyrighted, but instead of using those rights to restrict users like proprietary software does, we use them to ensure that every user has freedom."

Hence, without copyright, the legal foundation of GPL would be broken.

"Without copyright there

"Without copyright there would be no need for the GPL because the public would have its liberty."

Not true. GPL != Public Domain

Quote from: http://www.gnu.org/licenses/gpl-faq.html#WhyUseGPL
"Using the GNU GPL will require that all the released improved versions be free software."

The GPL liberates the public from mercantile privilege

The 'public domain' in the presence of copyright is a wholly different environment from the 'public domain' in the absence of copyright.

The GPL cleverly reproduces the environment of a 'public domain without copyright' for a specific work, this is because it mandates liberty in the work and its derivatives by requiring derivatives to have the same license.

If there is no copyright, then obviously no-one's liberty is constrained to any derivatives.

Perhaps I shouldn't have used the word 'obviously'.

Ask yourself this: If the purpose of the GPL is to restore the public's liberty to share and build upon published software as they wish, why in an environment in which copyright did not exist would you feel it would need to be re-enacted in order to restore the public's liberty?

It takes a very strange supporter of the GPL to defend copyright's suspension of liberty as a means of enabling the GPL restore it.

"We must have a law that stops people copying published works in order that we can enable the GPL to restore this freedom back to them"

That's like saying "We must have a law permitting the owning of slaves in order that we can set slaves free - which is good. We wouldn't be able set slaves free unless slavery was legal, therefore we need the law that permits the keeping of slaves."

"The 'public domain' in the

"The 'public domain' in the presence of copyright is a wholly different environment from the 'public domain' in the absence of copyright."

Maybe you have GPL confused with BSD or MIT licensing, or you have some contrived notion of "'public domain' in the absence of copyright" (hereafter referred to as "new public domain").

If I take a project that is GPLed, modify it, compile it, and distribute only the compiled form, I am both in violation of the license and making it difficult for others to make derivative works.

In this "new public domain," are all compiled forms required to be distributed with source code? or are you making some further generalization that all information is required to be made available to everyone?

Also, feel free to read up on fallacy:
http://en.wikipedia.org/wiki/Fallacy

Compulsory Publication

The GPL only needs to oblige the disclosure of source in the presence of copyright.

Without the monopoly of copyright, it is not commercially viable to sell copies - one can only sell the work. Therefore no-one will accept a binary if they have paid for the production of software.

Moreover, copyright is a privilege that violates the right to privacy. Without this unethical privilege there is no legal ability or need to seize the source code to an author's published binaries. If one requires the production or release of source code from an author, then payment is one of the most ethical means of persuasion - not state enforced seizure.

"Without the monopoly of

"Without the monopoly of copyright, it is not commercially viable to sell copies - one can only sell the work. Therefore no-one will accept a binary if they have paid for the production of software."

Interesting point.

What about something like the Adobe flash player? In the above scenario, Adobe could link in any software they want. No one is paying them for the flash player anyways. What would compel them to release the source?

Compulsion

The problem with copyright is its compulsory constraint on liberty concerning published software, i.e. you will be prosecuted if you copy or build on my published work.

If you're at all against the idea that people should be constrained or compelled to do anything when it comes to the publication of software, then you should also be against the idea of compelling someone to release source code to their published works - given no copyright.

In line with what I said previously, if you want Adobe to publish their source code I suggest you offer them money to do so. Why force a software developer to surrender their hard work without payment? Remember, it's free as in speech, not as in beer. And also note that the moment they do sell their source code, anyone can freely share and build upon it - given no copyright to prevent this. Check out the sale of Blender for an example of how a bunch of interested people got together to buy the source code to this closed software for the benefit of the public.

Given no copyright would you really want to criminalise the release of software without source code? Not only would that be an unethical constraint on free speech, but it would prevent coders releasing free binary demos of their as yet unsold software.

And the thread loops back.

And the thread loops back. ;-)

So, GPL can't be faithfully reproduced without copyright. That may be a good thing, or that may be a bad thing.

I will have to educate myself more on the topic of copyright before arguing either direction on that. A topic for another day!

Get a Second Opinion

Ask Richard Stallman which of the following choices he'd prefer for the future:
A) Status quo
B) Copyright & software patents abolished
C) As for B, but it is made illegal to distribute a binary of a derivative of published source code, without making the source modifications available to the recipient.

what's so special about illegal downloading?

Americans engage in a large number of unlawful "sharing" behaviors. We trade recipes copied from recipe books. We trespass on each other's driveways to turn our cars around. We "scalp" tickets. We run red lights, thus "sharing" a risk of death with our fellow citizens.

My question is: What is so special about illegal downloading that we as a society feel that it is appropriate to ruin the lives of people who do it (or are thought to have done it), while the perpetrators of much more serious "crimes" are ignored or experience less serious consequences?

Re: what's so special about illegal downloading?

Good point.

Though I worry about using it as a rhetorical strategy, because it seems to grant a worrisome premise: "Sure, it's is a crime, but it's such a minor crime that we shouldn't devote any resources to prosecuting it." That still leaves it a crime, when it shouldn't be a crime at all. Better to concentrate on full decriminalization than on minimizing enforcement.