Gary Shapiro: The Campaign to Have Copyright Interests Trump Technology and Consumer Rights [Seth]. Yes! Yes! Yes! This is the speech I’ve been waiting for someone to make.
In the past few months, Hollywood and the music industry have shifted to different words. They now only talk about downloading as “piracy”. They call it “stealing” and always use analogies to shoplifting products out of a store. […]
[T]he copyright community has reshaped and redefined the debate is almost biblical in its reach. The entire theme of the copyright community is that downloading off the Web is both illegal and immoral.
But is it either? I submit it is neither.
Despite the assertions of the Justice Department, downloading is not illegal [because of fair use rights]. […]
Downloading is not immoral either. To make downloading immoral, you have to accept that copyrighted products are governed by the same moral and legal principles as real property, thus the recent and continuous reference by the copyright community to label downloading as stealing. But the fact is that real and intellectual property are different and are governed by different principles. Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale. Indeed, it may be causing a sale (through familiarity) or even more likely, have no impact on the sale. My son often will become familiar with artists through downloading their music on the Internet and then go out and buy the CD.
How do we get this guy on the news? Who else is going to speak out? The conservative EFF doesn’t even claim this, preferring protect P2P systems indirectly though the Betamax argument. (They even refer to ‘piracy’ and call it illegal!) Napster’s dead, AudioGalaxy’s gone, other systems are on the way out. I’m having enough trouble trying to explain why warchalking isn’t theft, but in some ways this is an even easier case to make. If everyone is afraid to speak, who will defend our right to download?
Sidebar: Is downoading fair use?
Let’s apply the four-factor fair use test:
1. The use is private not-for-profit performance. [+1]
2. The work is well-known (played on the radio, etc.) and published. [+1]
3. The whole work is shared. [-1]
4. Such activities have had no discernable effect on sales of the work. [+1]
So other than three, it seems we have a pretty clear-cut case. Obviously three isn’t really necessary when the others are all so clear (just like a teacher making copies of an entire article for his students is fair use).