You go on vacation next week. I break into your house using a skeleton key. I mow your lawn, water the plants, touch up the paint around the fan in the master bedroom, vacuum up some plaster under the bed that you missed, restock the fridge, and reset the security alarm before going about my merry way.

What I've done is illegal. It hasn't hurt you materially. It's also wrong. Your property right to your house gives you control over who comes and goes. The fact that I am a benevolent visitor, doing you no harm (and indeed, some service), is not material. Your right is to unimpeded control over your own property.

The harm you're doing to the owners of the movie is to their non-material, and admittedly quite abstract, property right. As noted, you aren't actually hurting their property per se. You're just undermining the system of property that makes civilized life possible. (You horrible, horrible man.) And I don't blame you a bit for doing it.

What this really is, is a case of market failure. The distributor of the physical asset that contains the intellectual property which you wish to access is failing to bring it to you in a timely fashion, because he/she is hampered by an antiquated business model. At some point, we can hope that the generation running the entertainment business dies off and someone who's heard of the internets will come along.

Robert, I titled this post "Guilty Conscience" for a reason - which you've described quite well.

I particularly like the situation with TV and music -- they can plug a movie endlessly, play it on any station that will have it, over and over until you are sick of it, at no charge to you. They'd be happy to run it on giant screens at every intersection. But make a copy for your own use, and they cry "thief!"

I understand that it's the advertising they are selling, and not the movie/song. And so when you copy, you are depriving them of revenue. But the whole situation still seems absurd.

A DVD not yet on TV is a bit different. But I want to say to them, "If I agreed to sit through 20 commericals, could I have it for free then? You were willing to give it to me for that price when you broadcast it!"

Hey, Robert, your analogy sounds shockingly familiar. (It's a ways down, starting in the 19th paragraph.) Did we come up with the same analogy independently?

I'm not accusing you or anything absurd like that. I'm just genuinely curious. Great minds do think alike, after all.

It occurs to me that if you waited until you had bought the DVD, what you are doing may fall under 'fair use'.

Independent creation, it looks like to me. (Either that or you saw my comment tonight, built a time machine and went back to April, plagiarized my brilliantly original idea, and then returned to the present. And if you're going to go to all that trouble, then by me you can have the credit.)

Good essay.

I heard that the Shark Boy and Lava Girl movie sucked, but whatever, Steve. I just don't understand why you need to see it so many times.

Because we know nothing could ever change your mind and prevent you from going ahead and buying it, right? I mean, you would have meant to have bought it when you stole it, and so your intentions were good and your heart was pure.

The argument that no harm is being done is rather specious, since you don't get to decide whether someone else is harmed by your theft of his intellectual property. This seems similar to the arguments that we can always tax the rich more because they don't need it, and if they don't need it then no harm is done.

Perhaps you didn't really do it and are using this to spark a discussion. But if you did do it, what rationale do you use to justify it? Libertarian disobedience? Doesn't principal matter?

Release DVDs simultaneously with movies. Sell them at a grossly inflated price while the movie is still in theaters. I'll bet George Lucas would quadruple his fortune if he sold the DVD (with deleted scenes and commentary, etc) at the premiere of Ep III for, say, $99.

Robert's analogy is not terribly useful because it makes the common mistake of assuming an *idea* is equivalent to a physical *thing*. But it is not. The only fundamental way to keep one's "rights" to an *idea* safe is through secrecy (e.g., trade secrets). Intellectual property laws are inherently a compromise: the government GRANTS and agrees to enforce certain rights in exchange for those ideas (patents and copyrights) being relesed for public use. Originally, the right to have government prosecute someone copying your work without your permission lasted for 14 years, after which time the work would pass into the public domain. That is, others could use the ideas and text to create their own works. If copyright were an actual unlimited right, Shakespeare's plays, for example, would not exist. 99.999% of our culture would not exist. Want to make a movie called "The Little Mermaid?" Better figure out who the current heirs of Hans Christian Anderson are so you can get licensing rights to the work.

Now that copyright terms have been made effectively unlimited by Congress, we know that something like "Steamboat Willie" (let alone Star Wars) will never, ever be freely available. In fact, *anything* created after around 1929 is effectively unusable by anyone else in perpetuity.

I also think that the question of "what harm am I causing" is NOT irrelevant. At least, not to a lawyer. I disagree that, in Robert's example, the homeowner has had any rights actually violated: now, if the intrusion deprived him of even the *use* of his property for a short time, that would violate his rights. I also disagree with "yur right is to unimpeded control over your own property," which actually sounds a lot like a toddler not wanting anyone else to touch his stuffed animal, because it's "MINE!!!"

[By the way, it's clear to me that Robert is a thoughtful and mature person; I respect his thoughts here. All I am saying is that what we instinctively *feel* to be our rights may not necessarily be a sound foundation for moral or ethical analysis.]

There are plenty of essays on copyright law and theory available which discuss this a lot better than I can.

Since I'm a lawyer, I tend to think in terms of damages, and Stephen's actions have not materially damaged the copyright holder. I personally feel that if he were commercially exploiting this in some way, though, the moral impolications would be very different.

So what movie was it?

Dollars to donuts it's Star Wars: Episode III. (The "digital screen" bit is a dead giveaway.)

Sure, maybe YOU aren't harming the creator of the movie (according to yourself). But, just because you do this, and advocate that it is o.k. to do it, then more and more people do it. And, some, if not many, of those people will, in fact, forego paying to see the movie 4 times when they can watch it for free by stealing it. So, yeah, your particular criminal behavior may not "harm" the company, but it does harm society in that it adds up to make such behavior more acceptable, and thus more common.

jeez, in college we all taped each others albumns. Later on, ones I wanted to keep listening to, I went out and bought the CD version (though cover art has basically disappeared.)

Mike -- I'm a lawyer too. I don't think any jury, at least in my red-state part of the country, would take very kindly to a trespass defendant whose entire defense is "what harm did I do? They were on vacation and not using the house anyway."

And, yes, part of the rights of ownership is restricting use by others to those who have your permission. There are many reasons why we don't see litigation by 3-year-olds unwilling to share their toys, but among those reasons is not that property rights do not include the right to deny others the use of the property.

I am an author (ok, I'm a hack, but under copyright law and theory I'm still an author :). I have had my copyrights violated, and it hurt. That said, copyright infringement isn't theft. It is NOT stealing.

Copyright is a legal fiction. There is no natural right to make a profit. There is no natural right to control ideas. You do have the natural right to secure your own physical property and physical labor, including the right to not part with property unwillingly, but once you've made a sale, that's it. That's why common law has always rejected attempts to license music and movies to prevent resale of used original media.

Let's pretend Stephen is selling a song that he created start to finish. He prints/burns a CD, and sells it to me for $1 (StephenTunes. ;) It's my CD now, bought and paid for. Now, I stick that CD into my computer and burn a second, independant CD-R (bought from CompUSA with my money) and give it to Robert. What have I taken from Stephen? (Remember, there is no "right to make money".) I haven't stolen any property from Stephen, paying full market price, and I bought the CD-R myself. Under natural law, I haven't taken anything from Stephen at all.

"The government" realized that book writers and inventors would need some method to protect their ability to make a profit on their works, or that they might not work at all. Copyright and patents (at least in the US) are designed to provide a trade. The government would give people a short-term monopoly on created material if, in return, authors would write and would give two copies of the material or a working design to the government for perpetual storage.

OTOH, Smith's "invisible hand" in the market loves to squeeze out middle-men, and most of the squalking by the RIAA and the MPAA is about protecting the middle men. I think the market will squeeze out the RIAA and MPAA fairly easily.

Someone made the point that in television broadcasts what is really being sold is the advertising. This model is starting to break down particularly due to DVRs. P&G recently decided to cut their advertising budget significantly. Product placement is becoming increasingly important as an advertising medium, one which you can't skip through. Imagine a situation some years down the road where product placement provides the vast majority of advertising revenue for television. In this environment wouldn't the producers of a show encourage people to download their product for free, simply to increase the numbers of eyes seeing the products? I see this as analagouse to the magazine subscription game that Stephen points out in a different post. If one media is already willing to give away its product for free for the sake of advertising, why not another?

Not claiming this will happen. We don't know if this model is sustainable for magazines and newspapers, let alone TV.

If you go to the grocery store and open a gatorade and start drinking it before you buy it, is it wrong? How about going to a book store and reading a magazine before going to the counter to purchase it? I know these are not perfect analogies but I think the reasoning is similar.

Copywright infringment is only a social net loss if it leads to less movies being porduced or watched. I wouldn't worry about it.

I've been arguing for years that the movie and music industries need to start coming out with better value-added products, or they're just not going to last long.

DVDs have value-added with special features and interviews and even games. A CD with nothing but music has no value-added. Put some interviews on there! Add in a Pink Floyd inspired video game. I'd buy that. But if it's just music I can get for free off the radio, streaming from internet sources, or downloaded free from Kazaa, why should I buy your CD? If I'm getting the milk for free, what value do I get from buying the cow?

I also don't understand why artists don't look at electronic swapping as free advertising. Sure I've given away copies of your book-on-CD. But because my friends listened to this one, they all went out and bought the next two for themselves. Give a friend a copy of a Firefly episode, and likely they'll run out and buy the DVD series (everybody should, BTW).

Why do artists fight this so much? Why not use it to your benefit? Give away something that inspires people to go out and buy your value-added something else. Easy.

"A CD with nothing but music has no value-added."

I'm kind of a fan of liner notes, so to me that's some value added. I like looking up a particular track and finding out that yes, it is indeed Flaco Jimenez on the accordian.

Still, it's not a great deal of value added, and CDs are way overpriced. We've been subscribing to both Rhapsody and Sirius for a couple years; I hardly buy any CDs anymore.

Responses to a few of the above comments:

Kate TC said - "Why do artists fight this so much? Why not use it to your benefit? Give away something that inspires people to go out and buy your value-added something else."

Because, once it becomes acceptable (morally and/or legally) to trade/swap/copy/download all artists' materials, why would anyone pay for any book/music cd/movie dvd? As to the argument that DVD's have value-added stuff (interviews, extra scenes, out-takes), won't these DVD's simply be copied and distributed freely on the net? Thus, again, who would agree to pay for what he/she can get free?

As to product placement - that's fine for TV, where you have consistent new episodes and viewership can be fairly accurately estimated prior to the broadcast - how would that work for a movie? A few movies a year are guaranteed hits, but the rest - how would product placement pricing be fixed?

As the the idea that copyright is not a "natural" property right - does this work for all other laws one disagrees with? What is "natural" about owning property? What is "natural" about laws against drug use and/or prostitution? What about mandatory education. Should we be able to disregard all laws we don't believe are natural?

Matt is perfectly correct. Please note that the success of iTunes came after Napster was defeated, and after the music industry made it clear that MP3 "sharing" would not be tolerated.

If they had simply looked the other way and allowed people to just download songs free off Napster, only fools would pay a buck a song to get the same song, with restrictions, from Apple.

There's also a fundamental question of fairness here that people are glossing over.

Stephen says that his downloading of the movie caused no harm to its owner. This is debatable, but even if we grant the point, exactly what benefit did the owner derive from Stephen's extra enjoyment of their work? In other words, since the owner clearly intended for their movie to be a moneymaker, shouldn't they get compensated for Stephen's use of their product? Why should we conveniently set the standard at merely doing no harm to the owner of the movie? Isn't that our obligation to them prior to making use of their product?

In practice, of course, this is a fairly trivial transgression, far more innocuous even than speeding or forgetting to get a pet license when you move to a new town. But if we're arguing principle, I would say the content owners are squarely in the right here.

Kate writes:

I also don't understand why artists don't look at electronic swapping as free advertising. ...Why do artists fight this so much? Why not use it to your benefit? Give away something that inspires people to go out and buy your value-added something else.

Actually, artists (or their content owners) do this all the time, which is why sites like WindowsMedia.com and MTV.com have all those clips you can view online for free. But in order for it to work, "your value-added something else" can't also be available for free to anyone who asks. Which means you will still have to clamp down on the "sharing" of copyrighted content.

That said, most of the value in a CD is in the music, not the extra features. Likewise for DVDs: I only buy them for the movies, not for the 2 hours of that oh-so-insightful director's commentary. Were movies easily available for free download, I wouldn't buy the DVDs. Am I typical? I can't be sure without research, but does anyone really believe that most DVDs are bought for content other than the movies on them? I mean, sure, some people have five "Special" versions of Lord of the Rings on their shelf, but are they the norm?

Look at what piracy did to Hong Kong. It *did* result in lower budgets and fewer movies.

Say I see a necklace in a magazine that I want to buy, but it isn't going to show up on store shelves for a few months. I really want to wear that necklace immediately, so I break into the manufacturer's warehouse and take one. I plan to send them a check for the full purchase price as soon as the necklaces are available for retail. Would that be okay? (Hint: No.)

"If you go to the grocery store and open a gatorade and start drinking it before you buy it, is it wrong? How about going to a book store and reading a magazine before going to the counter to purchase it? I know these are not perfect analogies but I think the reasoning is similar."

I don't think these are good analogies at all In those cases, the stores, as owners of the products actually encourage such conduct. Borders has all those comfy chairs so you can check out a book or two before buying, and Kroger puts cold drink cases right near the entrance of the store, just so you will have a Gatorade or Aquafina while you shop.

Stealing is wrong.

I do it anyway, though, and I'm probably not going to stop anytime soon.

There's an interesting article at http://www.furia.com/twas/twas0503.html. A guy details everything he's stolen from the music industry and gives the reasons why. Again, stealing is wrong. But they're still some pretty good reasons, and the music industry needs to address them.

> I want to see that five gigabyte 480p picture on my HDTV in Dolby 6.1 Digital

So skip the 1.4 gig DivX file (it's that size only so that it can fit on 2 700 MB CD-Rs) and download the 4.6 gig DVD-R.

Personally, I want to see it in 1080p, or as close as I can get, which I guess would be 1080i.

If you've seen it twice, are downloading it now, intend to buy the DVD, and the title is "The Sisterhood Of The Traveling Pants", then it's just very, very wrong.

PLEASE, PLEASE tell me the name of this movie!

look at baen books:

all of their books get parts released online before publication, and many books get added to their free library. they give out a free copy for every electronic version purchased, and routinely give out cds in the hardcover copies of major books that include 10-30 previous books (some of the same author, some of others) which are encouraged to be torrented.

according to the various authors and the publisher, Jim Baen, this electronic distribution with few to no restrictions has resulted in greatly increased sales. I'm buying a lot of $15 US monthly subs (includes 4-6 e-books) as well as hardcover books, and they likely see more money from a $15 e-sale than from a $35 hardcover sale (no costs, no markup for B&N/Amazon, etc).

RIAA and MPAA are middlemen and protecting their positions because they are idiotic dinosaurs, rather than trying to adapt the business models. They will die for being stupid, as they should. Content creators (most of us are these days) deserve to have their rights respected and get paid for people's use and enjoyment of their work. But when people are not exploiting the work commercially, 1 personal license should be sufficient (barring any extras, rework, etc such as those associated with boxed sets, remastered editions, special editions that destroy the logical coherency of the movie and waste millions of dollars on crappy special effects that slow the movie down GEORGE LUCAS...)

"Intellectual" property rights is an artificial concept, made possible only by an advance in technology that allowed people to record a performance, and then control the means of copying and distribution.
It is only fitting, I think, that later advances in technology now make it difficult (if not impossible) to control the means of copying and distribution anymore.
Mozart could only make money by composing new music and giving performances of it. Was he denied any natural right? Nope.
If people cared about "Art", they wouldn't care about the music/film industry, to tell the truth, because 80% of that industry goes to keep the producers rich...the fact that "artists" make money, too, is only a byproduct.

As digital and computing technology increases, questions of "intellectual" property rights will become even more ridiculous. We'll develop a new system of dissemination of ideas, and in this Brave New World the crap that is the Star Wars Prequels would never have been forced on us; rather, better minds would have written the prequels in a competitive setting and the best would have entered the social consciousness as the "correct" form.

Just look at the mess that's been made of the Batman genre by Hollywood. But one good effort (Batman Returns), and the public now safely ignores/forgets Batman Forever. As it should be.

Aside: why should we respect the Intellectual Property Rights of people who have to "Hollywoodize" (i.e. change) what was actually written in works like Spiderman (didn't Peter Parker invent his webcasters?) and the Lord of the Rings (WTF did they have to make the ending different? And whither Farimer?)?