93: Pro-Choice

"After hearing about EMI's decision, the PFF's James DeLong, a longtime advocate of using DRM to weed out 'free riders' from not paying, wrote, 'If the new format quickly turns up on the P2P sites, and if sales start off high and then fade away as the songs spread virally from iPod to iPod, then we will have learned something.' This, of course, is silly."

Tom Rhodes has been on both sides of the DRM debate. He thinks piracy sucks, and DRM is just as bad.

Pro-Choice

It's good to see a company deciding to drop anti-piracy measures. The amount of money spent on developing them can't be less than the amount they save.

It hadn't occurred to me until I read this article that from the perspective of the consumer dealing with DRM, games are a lot more like movies and e-books than they are like music. What I mean by that is what happens the *second* and subsequent times one goes to use a piece of media one has purchased.

If I buy a song, the second, third, fourth...hundredth time I listen to the song, it's as good as the first time; in fact, I've found with songs and albums the most enjoyable 'listens' aren't the first or second, but the couple after that. If the song doesn't wind up overplayed on radio and stays a deep album cut, I can be as much into a song *years* later as I was the first time I heard it.

On the other hand, movies and books and games are almost always the most fun that first time through. I guess if I was really into film as an art form that might be different, but, I think when it comes to the average consumer the *novelty* of the plot is an essential part of the enjoyment, however much they may enjoy the mechanics of gameplay or the special effects of a movie or the clarity of a piece of writing.

That's so much different than a song where the novelty of the lyrics really doesn't add much to the experience in comparison--I've listened to lots of folk songs over the years with surprise endings, but, none of them come close to, say, _The Usual Suspects_. We use the word "library" for books most of all, and sometimes for film, games, and music; I think, however, music gets used in a library-like fashion more heavily and by more people than any of the others. What I mean by that is people want their music accessible and retrievable, and they make a lot more use of their 'back catalog' relative to their new acquisitions than they do when it comes to any other library.

So what does that have to do with DRM? Well, it means the consumer has way, way more to lose when they run into DRM problems affecting their music library. Obviously on a first play DRM problems are equally bad no matter what it is. However, I lose a lot more if I only get to listen to a song ten, twenty, even fifty times before DRM makes my old music files useless than if the same things happens to a game or a movie or an e-book, even if that's only the second or third time I'm using my e-book/game/movie file.

Which is why I think DRM makes much, much less sense when it comes to music. Number one, I think it dissuades far more customers when it's attached to music than when it's attached to movies/games/e-books. I think consumers feel like when they purchase music, they want that music for life in a way they don't when it comes to games/movies/e-books. I think because music listening is a much less defined experience: games and movies and books have a 'finish'; albums and songs do to, but, for me at least I associate certain songs and albums with months, even years as opposed to 'oh yeah, I went to see movie one weekend in December of last year'. Movies and books and games are much more 'discreet' experiences, much more 'bounded'.

Number two, a first-time pirated experience is much, much less likely to get a consumer to go out and make a legitimate purchase when it comes to books/games/movies than it is when it comes to music. I mean, record companies would actually pay money to give you the whole song for free if they could--think of the various Payola scandals over the years. My explanation is that when it comes to music people will pay for the ability to listen to that music whenever, wherever they want to a degree you just don't see when it comes to the other forms of media. They play Top 40 songs to death on the radio, yet people still buy the albums--usually more than they buy other albums--even though for two or three months you're guaranteed to get that song on the radio at least once an hour; the explanation that makes sense to me is that a music purchase is so much more about getting to have the experience anywhere, anytime than it is with a game or movie or book.

I think the exceptions buttress what I'm saying: I've probably purchased StarCraft two or three times over the years. Now, StarCraft has an *awesome* single-player campaign, but, what makes me keep buying it when I lose a disc is that every multi-player experience is different, and the multi-player experience is every bit as fulfilling as the single-player campaign. And I'm not even talking battle.net here and the cd-key: I'm just talking about LAN play. Games like StarCraft and Civilization are a lot more like a song--the replay experience is just as good as the single player, just like a song can sound good after sometimes as much as hundreds of replays.

I think that's a big part of why getting DRM out of music is a much, much bigger deal than it is with games/e-books/movies. When a person goes to buy a piece of music, they're thinking a lot more about the use they'll get out of this over the years as a piece of a library than they are when they buy games and e-books and movies. And DRM makes people feel like they don't have a library--it's more like a bookmobile, and you never feel safe that they aren't just going to drive off with all your media one day.

If companies actually took the time to create a work that was worth spending money on, more people would support it. With the drek that mass music/movies/games are nowadays, it's no wonder that the entertainment industry is so pirate worthy. They need less "copy protection" and more spending time and money on something good.

Lord_Jaroh:
If companies actually took the time to create a work that was worth spending money on, more people would support it. With the drek that mass music/movies/games are nowadays, it's no wonder that the entertainment industry is so pirate worthy. They need less "copy protection" and more spending time and money on something good.

For music especially, video to a lesser extent, games less so, and going all the way to commercial software at the opposite end, I find that if it's not worth paying for, it's probably also not worth getting for free. At some point, time rather than money becomes what you end up paying the bulk of the cost with.

Lord_Jaroh:
If companies actually took the time to create a work that was worth spending money on, more people would support it. With the drek that mass music/movies/games are nowadays, it's no wonder that the entertainment industry is so pirate worthy. They need less "copy protection" and more spending time and money on something good.

This is an excuse for piracy that just rings like laziness to me. There have been many great things that have come out over the past few years, and they have been pirated just like the rest of the crap out there. And if they were so terrible, why even bother pirating them? If someone wished to play/read/watch/listen to whatever media something came in, then there really is no pirating excuse. If someone doesn't like my work, then don't buy it, but that doesn't mean you get to download it freely just because. The logic between hating something but downloading it anyway don't really mesh with each other.

Tom_Rhodes:
If someone wished to play/read/watch/listen to whatever media something came in, then there really is no pirating excuse. If someone doesn't like my work, then don't buy it, but that doesn't mean you get to download it freely just because.

Maybe, but, in that case we're talking about something one might call 'misdemeanor' piracy as opposed to 'felony' piracy. If someone likes your work enough to buy it and they pirate it, they not only enjoy your work without your permission, they also deny you revenue you would have otherwise had. If, however, they never would have bought it in the first place they're only enjoying your work without your permission. Big, big difference.

Number one, I chose the word 'enjoy' there for a reason. People call it stealing, and, well, it's not. Stealing is when I actually *take* something you own and deny you use of it. This is more like trespassing on property without you ever knowing about it. The government I think has come down very hard on the side of the industry because they've been able spin the vocabulary of the debate. It's time to change the paradigm under which the debate is conducted. Even calling it piracy is a little much--its a bit more like being a 'digital stowaway'. The word 'piracy' should be reserved for people who not only illegally copy, but then *profit* off of that copying in a way that denies a business opportunity to the rightful owner.

I wonder if the use of the word 'piracy' is a throwback to the old days when lots of this activity involved 'zero-day warez'. It's unfortunate it has stuck around, because it really spins the debate.

Number two, I agree that "The logic between hating something but downloading it anyway don't really mesh with each other." However, love and hate are not the only range of responses. There can be 'indifferent but I'll give it a shot if it's free' or 'hate, but need' or 'like enough to use, but would never buy'. Let's not go lumping any of those people in with the kind of people who don't pay for things they actually like--maybe none of them are perfect, but, we don't lump people who write bad checks in with bank robbers: same logic should apply here.

Number three, let's face it: most people are glad to hear of digital piracy exploits not because they'll ever really engage in bootlegging media, but because the countermeasures the ??AA's have imposed tend to restrict common sense use. People who spend a lot of money on digital media also tend to spend a lot of money on digital hardware. The countermeasures employed by the ??AA's do too much collateral damage.

If they came out with the perfect DRM that allowed people to buy media for one price and play it on everything from their stereo to their toaster but to never actually 'give' it away to someone else, I really don't think anyone would complain. Until we all get tagged with RFID chips, though, that's not going to happen. Instead we get countermeasures that hurt the honest consumer more than the pirate. That's why even if someone is against piracy, they excuse it because they feel the pirates are preying on the galleons of an even more deplorable entity.

Tom_Rhodes:

This is an excuse for piracy that just rings like laziness to me. There have been many great things that have come out over the past few years, and they have been pirated just like the rest of the crap out there. And if they were so terrible, why even bother pirating them? If someone wished to play/read/watch/listen to whatever media something came in, then there really is no pirating excuse. If someone doesn't like my work, then don't buy it, but that doesn't mean you get to download it freely just because. The logic between hating something but downloading it anyway don't really mesh with each other.

It's laziness to test drive a car before buying it? Trying a book from the library? Borrowing a movie from a friend? That's what I do with games. If I enjoy it enough, I'll purchase it, to show my support for the company. If I don't enjoy it, I will delete, as I obviously don't like it, and would rather not pay for it. I use "pirating" much like I use a library: if I like a book, I'll buy it. But I'm not about to go and buy a bunch of books willy-nilly because I hope they will be good. The difference here is that there is no "library" for movies, games and music, when there should be.

Lord_Jaroh:

It's laziness to test drive a car before buying it? Trying a book from the library? Borrowing a movie from a friend? That's what I do with games. If I enjoy it enough, I'll purchase it, to show my support for the company. If I don't enjoy it, I will delete, as I obviously don't like it, and would rather not pay for it. I use "pirating" much like I use a library: if I like a book, I'll buy it. But I'm not about to go and buy a bunch of books willy-nilly because I hope they will be good. The difference here is that there is no "library" for movies, games and music, when there should be.

Then do you download games that have demos?

But in general, my stance is this - stolen copies of games are not a good thing. They may or may not hurt the industry, I don't care, It's still wrong to take something for free if the developer has made a product and is selling it for a price. If the price is not acceptable to you, don't buy. But don't think that it gives you a moral high ground in stealing it. The punishments for this stealing feel extremely out of balance with the crime at the moment. The gaming industry hasn't tried to hunt down end users though. They haven't treated their customers like criminals yet. (Starforce aside, there are few cases that would meet my argument) You get a lot worse copy protection and DRM on Microsoft Windows itself than on the games you install on a computer running it.

So - in summary - Punishments for piracy as a whole = the wrong punishments. Piracy itself = bad. No argument about harm or lack thereof will change that it's still wrong. I don't believe that authors are forced to put their books in libraries, nor are you required to let someone test drive a car, it's just shown through the market that it's a better way to make a sale, and I think the industry gets that, and demos are an effective method of achieving it.

I usually do try a demo before resorting to downloading. However, many times a demo will consist of "look at our pretty cgi movies" and "here is what it looks like to play our game" without letting you actually playing the game yourself. Those I will download to get the "full effect" so to speak. Often, I end up deleting them as the game ended up being something I didn't want.

Another reason I will download a game is if I can't find it to buy. Now, I'm not talking about new releases, but rather old games that I remember playing and wanted to get. I had to do that with Seven Kingdoms. I had initially bought it years ago, but lost the disk in my many moves. I tried to find it to buy, as I wanted the game years later, and I remembered it fondly. I couldn't so I downloaded it. I did buy the second sequel based on the strength of the first one, and found it lacking. I still play the first one to this day.

Another game I downloaded was Warlords Battlecry III after a friend showed it too me. I also tried to find that one to buy to no avail, so I had to resort to downloading.

There are many games out there that I'm sure many people would like to buy, but cannot find due to very tiny computer sections in stores and those sections only containing the new hot games (which are relatively quickly replaced by others). Those older games are very hard, if not impossible to buy and so downloading is a persons only means to get them. Sure it's wrong, and I would love to be able to support the game by purchasing it, but when I am given no option to support the company what can I do?

Now I do buy the games I like and want to support. I have a small collection of games that I have bought (Diablo II, Starcraft, Titan Quest, Neverwinter Nights 1 and 2, Oblivion, Kotor 1 and 2, Seven Kingdoms 2, Guildwars, Dungeon Siege 1 and 2 and a couple of MMOs), and a far smaller one of games that I have "stolen" (Freelancer, Warlords Battlecry 2 and 3, Seven Kingdoms). I do see myself buying a couple of games in the future that I am eagerly awaiting (namely Spore and Hellgate: London), but if I hear about a game I wouldn't mind trying out to see if I'll like it, I'll give it a go and see if it's worth it.

Is it wrong, sure, I'll admit that I am in the wrong, but are the makers also not in the wrong for producing glitchy, buggy, laggy, or otherwise screwed up games without taking the time to finish them jsut to get a quick buck? I think so. The companies that I enjoy the games get my money, and the companies that screw up don't, and I delete their games as I found I never wanted them anyway. I don't keep games I don't buy, as I don't end up liking them, ergo the person is losing out on me being a sucker and spending $50 on a lemon, while they laugh at the gullible masses.

Here's a newsflash for the game companies out there: If you make games worth buying, people will support you, and be happy to do so. If you make drek, don't blame your poor sales on "pirating". That can only be blamed on your own incompetance.

TomBeraha:
They may or may not hurt the industry, I don't care, It's still wrong to take something for free if the developer has made a product and is selling it for a price. If the price is not acceptable to you, don't buy. But don't think that it gives you a moral high ground in stealing it.

You might not care whether it hurts the industry or not, but, I'm guessing you're not a victim, either. I have to wonder how much a developer or a designer or any other human being significantly involved in the creation of a piece of media *really* cares about pirated games that don't effect their paycheck, if no one else is making money off that pirated game.

So yeah, there might not be a moral high ground in 'stealing' it. On the other hand, exactly how low is the ground for using software you never would have paid for, that you didn't pay money to REAL software pirates for, that the developer never knows about, that in no way impacts the public image of the developer or his/her software? To me, not low enough to care about, and I buy all my games. Obviously, though, the moral ground is too low for you; I just wonder what's the point of being so zealous something that causes no damage in a world where people who have never played a game in their life are driving down sales with organized illegal operations that threaten to put those developers out of business, taking away both their financial and creative futures.

Finally, something I said above: I don't think it's accurate to call this stealing. Stealing is when I actually *take* something you own and deny you use of it. This is more like trespassing on your property without you ever knowing about it: no damage to the 'property', no 'property' lost, no business opportunities poached, nothing like that--it's not even *mis*use, let alone a lost sale, let alone an actual damage or deprivation.

Which makes a lot of this no more 'wrong' than using a short cut over private property that the owner will never know about. Which...doesn't seem to bother people like this does.

Cheeze_Pavilion, you're completely right. A pirater who wouldn't have bought, isn't depriving the game seller directly. If we lived in a world that's only filled with goodminded, conscious people, we could end the discussion right there.

You know, I like to go skating (on rollerblades). In fact, I'm a bit fanatic, I frequently go shopping on skates, go through the train station to my train on skates, heck, I even walk stairs on my skates. I have carefully observe if my skates do any damage to the surfaces I skate on and although I like to pick up speed, I'm mindful of other people. I have never hit or fallen on anybody.

The people in the library have asked me not to skate in there anymore. Although they see, yes, I don't damage or inconvenience anyone, allowing me to skate in there means allowing others to skate in there. And not everyone is mindful.

Now you said this already with pirates profiting or pirates not profiting from what they do. But if you use the same argument you use for 'zero-impact pirates' for game developers, then why would they care if someone profits of the illegal use or not?

The 'people who wouldn't have bought it anyways' argument sounds right, until you start to factor in that this behaviour is copied by less conscious people that may have had the money to buy it.

To take it further, it's pretty much possible by now to spend ALL your time on pirated games, never replaying a single game, without ever paying for a game. (With maybe a part time job to finance living costs). That person wouldn't have the finances to pay for games. However, if piracy were impossible, this (simplified) lifestyle would be impossible and a pure game nut would maybe instead go for a full time job and buy games, whereas a high school kid might deliver newspapers to finance his hobby.

The behaviour of "I pirate, because I wouldn't have bought anyways" doesn't hold up, because it also increases "I pirate for other reasons".

Capo Taco:
The behaviour of "I pirate, because I wouldn't have bought anyways" doesn't hold up, because it also increases "I pirate for other reasons".

Assuming that's true, that still leaves the question of whether it matters.

Going through the list of games I've rated really highly in the past, they seem to have a good track record of making money. This being the case, I'm inclined to conclude piracy is not a big problem.

Sure, people like Ragnar Tornquist are convinced by the idea that "piracy is a serious threat to the industry". But really I've yet to see evidence from anywhere. The industry seems really healthy to me. Those companies that have folded in recent years have mostly done so thanks to the rapidly increasing cost of developing a AAA title and difficulties with retail outlets.

My guess is that pirates are a strawman. Yes, they exist. Yes, they cost developers some revenue. Personally I doubt it's significant.

Good point.

Capo Taco:
The 'people who wouldn't have bought it anyways' argument sounds right, until you start to factor in that this behaviour is copied by less conscious people that may have had the money to buy it.

To take it further, it's pretty much possible by now to spend ALL your time on pirated games, never replaying a single game, without ever paying for a game.

I didn't factor it in because I don't think it happens. To take it back to what you said: won't many, many more people see you skating in a library than will ever see you playing a pirated game? When you do something as public as skate in a library, you skate in front of everyone and everyone knows you're skating. Gaming is a semi-private affair where basically unless someone tells you it's pirated software, you have no idea. Goodminded, conscientious people I don't advertise their use of pirated software to those that are not to any significant degree.

As far as 'time playing games' well, you *can* but that to me sounds like someone who just likes the thrill of it all, or they couldn't afford the games anyway. Everyone I know has the opposite problem: making time for the games they *have* bought. Also, to me, if the game doesn't compel me to "replay" it, then, how does a pirated copy differ from a demo? It's possible to do what you said, but, I can't imagine it being much fun.

In fact, I *hope* companies that put out games that can't hold a person's attention long enough that they don't feel compelled to go pirate more games *do* go out of business, and make some room for people who put out quality product!

I like that I've started debate, which I won't jump in again just quite yet.

I will say this about "misdemeanor" piracy however: With enough misdemeanor shoplifters, a store gets put out of business (realizing the difference between physical and intangible property).

Cheeze_Pavilion:

When you do something as public as skate in a library, you skate in front of everyone and everyone knows you're skating. Gaming is a semi-private affair where basically unless someone tells you it's pirated software, you have no idea.

The internet is no less public than a library and although in general you'd have to search, it's not that uncommon, especially for gaming forum frequenters, to come across various comments about downloading and pirating games. Through torrents and peer2peer networks, anyone who's pirating actually makes it easer for others to get the same downloads.

The 'time playing games' is, I admit, a fairly extreme hypothetical situation. My point was that just because some people are unable to afford games, pirating still hurts, because there might be a future where that person is able to afford games and would have bought said game. I imagine it's quite rare for someone to first pirate a game and then later buy it (although I have done so on occassion when games come out later in Europe)

Cheeze_Pavilion:

In fact, I *hope* companies that put out games that can't hold a person's attention long enough that they don't feel compelled to go pirate more games *do* go out of business, and make some room for people who put out quality product!

Not all games are about replayability. There are games that have a transitional value, where you come out slightly different than you went in.

I recently used my humble and shamelessly self-promoting blog to examine issues like this from a strictly economic perspective. The long and short of it is that, since the Internet came around, music has become something that fulfills all the economic definitions of a public good, and movies and the like aren't far behind. If you want to make money selling information-based goods these days, you'll have to find some way to make the stuff excludable again. DRM of the type we've seen so far is obviously not cutting it. Perhaps the entire business model needs to be changed. Perhaps some kind of arts endowment should be created or expanded.

Games are a slightly different issue, since with a game, it is possible to mix the game and the copy protection. Since the game and the copy protection both have to be executable, you can set it up so you can run one without the other. Music and movies, on the other hand, are just data, so from a technological perspective, once you get the data out the copy protection is worthless.

Tom_Rhodes:
I will say this about "misdemeanor" piracy however: With enough misdemeanor shoplifters, a store gets put out of business (realizing the difference between physical and intangible property).

The logic that statement implies is flawed, though, because "realizing the difference between physical and intangible property" makes all the difference in the world--relegating it to a parenthetical is like relegating 'violent vs. non-violent crime' to a parenthetical in comparing misdemeanor assualt & battery and misdemeanor theft. It's like saying "with enough misdemeanor assaults a person winds up in the hospital" when discussing misdemeanor theft.

I think to realize the difference between intangible and physical property, you have to think of 'digital shoplifters' as people who come in with some kind of reader that scanned the code off the products, leaving the products both in the store and in the same physical condition as before the incident. Isn't that a world away from a 'physical shoplifter' who takes the product out of the store forcing the store to re-order, to pay twice as much in investment to make one sale?

That was my point about trespassing vs. stealing: how could a store ever go out of business from enough trespassers who cause no damages? I mean, we use the word 'infringe' to describe using someone else's intellectual property when it comes to trademarks and patents, but the word 'steal' when it comes to music, movies, games, etc: isn't that too big of a leap?

Like I said before: part of what makes the debate difficult is sloppy--and one-sided--terminology. Trying to capture what is involved in protecting intellectual property rights in a digitial, computer filled world with terminology from an analog, computerless one is just asking for trouble. It's like trying to capture the world of the stock market armed only with the concepts of 'fraud' and 'theft'. We needed a concept like 'insider trading' back then, just like we need a concept right now for what we're calling 'digital piracy'. 'Tresspass' probably isn't it either, but, it's way better than ones like 'shoplifting'. And calling it piracy--while kinda cool--really doesn't do much to help the debate along.

Capo Taco:

The internet is no less public than a library and although in general you'd have to search, it's not that uncommon, especially for gaming forum frequenters, to come across various comments about downloading and pirating games. Through torrents and peer2peer networks, anyone who's pirating actually makes it easer for others to get the same downloads.

I think the internet (and tv and radio) are 'public' to less of a degree than--or at least, in a significantly different way from--a public physical place, but, that's another matter. Another, more easily communicated problem I have with your analogy is that you're not only asking to be allowed to skate in a library, you're asking for access to their premises. I don't think I ever said anything to the effect that I should be able to go to the publisher and say 'please let me borrow a disc so I can go home and copy it, because I wouldn't buy it anyway'. Or to demand the game store sell me blank cd-r's so I can make copies of the game I just bought from them. I don't think anything I said could be taken to mean that people have a right to ask an 'owner' for help.

In effect, that's what you're asking for in your analogy. I think you misunderstood what I meant by 'zero-impact'. I said "[t]his is more like trespassing on property without you ever knowing about it." When you skate in the library, they certainly know about it. I meant 'zero-impact' in the sense that I'm not even asking the owners to witness specific instances of it. In your library example, you're asking for them to turn a blind eye to your skating when they see it, so I wouldn't say that your 'skating in the library' is *truly* 'zero-impact' just because none of the 'impacts' are damages.

Capo Taco:
My point was that just because some people are unable to afford games, pirating still hurts, because there might be a future where that person is able to afford games and would have bought said game.

I don't think anyone's ever said that piracy doesn't 'hurt' anyone; I think the discussion is about lumping in every single person with the kind of people who have never played a game in their life and are only into software piracy because it's a better illegal racket than fake watches. So sure, I agree with that point, but, I don't think I ever disagreed with it, either. When I said "they never would have bought it in the first place" I didn't mean 'first' in the sense of 'first day of release'. Maybe that was unclear--I meant it in the sense of 'ever' which includes what you are saying.

Capo Taco:
Not all games are about replayability. There are games that have a transitional value, where you come out slightly different than you went in.

Sorry, bit of confusion here: by "'replay'" in the second paragraph of the comment you're responding to, I meant the same thing I did when I said "long enough" in the third--"replay" in the sense of 'come back to', not necessarily 'finish and start over again'; I didn't mean it literally, so I put in in quotes. I get what you're saying, though: take a look back at comment number 3.

Cheeze_Pavilion:
I think to realize the difference between intangible and physical property, you have to think of 'digital shoplifters' as people who come in with some kind of reader that scanned the code off the products, leaving the products both in the store and in the same physical condition as before the incident. Isn't that a world away from a 'physical shoplifter' who takes the product out of the store forcing the store to re-order, to pay twice as much in investment to make one sale?

That was my point about trespassing vs. stealing: how could a store ever go out of business from enough trespassers who cause no damages?

Suppose those hypothetical "trespassers" are not just scanning the code, but actually can duplicate whatever product is in the store at essentially zero cost. This was what I pretty much meant. Granted, nothing is being stolen in the traditional sense (i.e., deprivation of one person's property without payment or barter), but the result is the same. If, say, half the usual foot traffic for that store came in and did that instead of buying the products, it would bankrupt the store and then the manufacturers and designers by having a significantly reduced income.

Except, of course, this would be complicated. Simplify it further: the "trespassers" wouldn't even have to leave their house, just duplicate items from home at essentially zero cost. If enough people get together to do that, then whatever value those items had eventually reduces to almost nothing.

The means are different, the ends are the same. Except instead of a store with its merchandise missing, its filled with boxes that no one wants because they already have them.

As for word use, I don't know what terminology to use that's appropriate. But no one ever questions the use of "He stole my idea!" even though that's something intangible. *shrug*

Tom_Rhodes:
Suppose those hypothetical "trespassers" are not just scanning the code, but actually can duplicate whatever product is in the store at essentially zero cost. This was what I pretty much meant. Granted, nothing is being stolen in the traditional sense (i.e., deprivation of one person's property without payment or barter), but the result is the same.

I think we pretty much are going for the same idea with 'scanning the code'--walking off with a product just as good as the one on the shelf.

However, like I keep saying, the result *isn't* the same, and here's why: like you said, "instead of a store with its merchandise missing, its filled with boxes that no one wants because they already have them." Well, that makes a HUGE difference for two reasons.

One, sure: "[t]he means are different, the ends are the same." I have to ask, though: in what other area do only "ends" count? If someone sets up a fake brokerage and puts my money that they told me they'd invest for me into a suitcase and leaves town, isn't that way, way different than if I give my money to a real, skilled broker who makes a bad investment where there was a conflict of interest? Same "ends" right? Just like in your example, I'm left holding valueless investments instead of no investments, but, I think of those as two totally different categories of 'I lost my money'. Don't you?

Two, when I steal in the traditional sense--deprivation of property--I don't hurt the *market* for that product. The market is one product shy, just like if I bought it, right? However, that individual merchant just lost whatever money they put into getting it on the shelf. That's why merchants go out of business from shoplifting: the market for the product is just as strong so the price remains the same, but the merchant winds up paying more money in investment for each sale. That puts them out of business by either: making it too expensive in absolute terms; or making it too expensive in relative terms, putting them at a competitive disadvantage against other merchants.

When it comes to 'digital shoplifters', thought, like you said, "the "trespassers" wouldn't even have to leave their house, just duplicate items from home at essentially zero cost. If enough people get together to do that, then whatever value those items had eventually reduces to almost nothing." I agree 100%. And that's why I say it's nothing like shoplifting.

If those boxes become valueless, well, guess what: next month the merchant can order different boxes that contain goods with a better market value. If there are no boxes this month because of shoplifters, well, it doesn't matter what boxes you order next month--shoplifters will take those off the shelf too. Isn't that a world of difference?

When the value of the item drops, that affects the whole industry. That doesn't affect individual merchants like shoplifting does--that affects a *market* and affects *every* merchant. That's why I said all that about about "exactly how low is the ground for using software you never would have paid for, that you didn't pay money to REAL software pirates for, that the developer never knows about, that in no way impacts the public image of the developer or his/her software?": shoplifting is about property; piracy is about fair markets. Just because property rights and fair markets are intermingled doesn't mean we can treat them as if they were identical.

Tom_Rhodes:
As for word use, I don't know what terminology to use that's appropriate. But no one ever questions the use of "He stole my idea!" even though that's something intangible. *shrug*

I never said something that's intangible can't be stolen; if you re-read my initial response to you, you'll see that I wrote: "The word 'piracy' should be reserved for people who not only illegally copy, but then *profit* off of that copying in a way that denies a business opportunity to the rightful owner." A business opportunity is pretty intangible--it's not even a service, let alone a good--so sure, intangibles can be stolen. I don't think I ever disputed that.

People question the use of "he stole my idea!" all the time--remember that guy who patented the linked list? Or all the issues surrounding the human genome? Or one-click Amazon shopping? Really, is there any *bigger* issue right now than the question of what "he stole my idea!" really means? Isn't it the equivalent in this century of the question of railroad and utility easements in the 1800s?

I'm not sure what terminology is appropriate, either, but I'm certain "stole" is inappropriate, and "trespass" is a better one until we can find the right one (since 'digital stowaway' is kinda silly, but pretty accurate). Just because we don't know the right answer doesn't mean we can't recognize wrong ones, (e.g., I don't know the answer to 435443 x 345656 off the top of my head, but I sure know it isn't 7!). And calling it stealing is overkill because (1) it treats this issue unlike comparable ones where 'different means' are significant even if the 'same ends' are involved, and (2) it ignores the fact that this is a *market* issue, not a *property* issue. Which, like I said, is a task as doomed for failure as trying to control a stock market with only the concepts of 'fraud' and 'theft'.

Fact is, we need better terminology. We need better concepts, like those contained in Bongo Bill's blog entry linked off of his post. Just shrugging and accepting the paradigm given to us by people who don't care about the audience (which I'm a part of, making me very interested in there being a profitable market for games) or the artists (who I care about, but see a subsequent comment for that) or anyone but their own shareholders certainly isn't the answer.

I think a lot of the 'piracy is bad' comments are motivated by the feeling that people who create games and movies and music should be rewarded, and that even if they're not losing a business opportunity, that they're somehow getting 'cheated' when someone enjoys their work without paying for it.

Leaving that aside for now, it makes me think of an issue from almost a decade ago: used CDs. As I remember it the record companies were just as adamant that this was illegal, immoral, and every other adjective that changes to a pejorative meaning with the 'i-' prefix. As an aside, I always thought that the Napsters of the world hurt the Tower Records of the world more than they hurt the record companies, and way more than they hurt the artists.

Anyways, the point: we're busy here talking about moral high grounds when it comes to piracy, and a big chunk of the discussion revolves around things like compensating the creators and destroying the market. I have to wonder though: if those are such big concerns, why no problem with buying used discs (of any kind--movie, game, or music)? If the big argument behind someone who won't pay full retail price is their impact on the market and how they leave the creator out in the cold, well, where's the difference between someone who won't pay full price for a new game and pirates it, and someone who pays a discounted price for a used game where none of that purchase price goes to the original creators...or the marketing people, or the pressing plant, or any of those people, without which the industry in general would not exist and you wouldn't be enjoying the specific title you are buying that day?

Whether Gamestop is entitled to the rewards is enjoys from that market, that's another matter: whether I pirate or I buy used, the same 'market' and 'creator' issues are implicated. I mean, I totally get the importance of compensating creators--I belong to a music subscription service, and I never download the tracks of artists I really like, because (1) I like getting the packaging and inserts, but mostly (2) becuase I figure I'm putting more money in their pockets. So I'm totally on board with giving content creators their due financial rewards--I do it to my own financial disadvantage, in fact.

It's just that I wonder--if the argument is about a healthy market and compensating the creator--where the used disc trade fits in, which cannibalizes the new disc market to create a parallel one and doesn't send a dime back to the content creators.

In writing this, I poked around online to read a little about the used disc issue. I ran across this page, It's in the (Used) Game, which reminded me of a *truly* harmed market: textbook publishing. I wonder how many people who went to college thought about the effect of buying used textbooks instead of new ones. I wonder how many people think about how the fact that a used textbook market exists has basically (1) driven up the market of *all* textbooks, because the publishers have to slap ridiculous prices on each new edition to make any money, and that (2) your professors made almost no money on those books they wrote.

Talk about the negative effects of the failure of a market: college students get charged unfair prices, and about the only reward a scholar gets out of writing a book is tenure, and we only get 'pop' psychology and history and philosophy in our bookstores!

So, I get the importance of keeping the market healthy, and the motivation to make sure content creators get their just rewards. However, to me it seems myopic to talk about those issues and their relationship to piracy without also talking about their relationship to a host of other issues that are just as intertwined, foremost among them used discs: a phenomenon that is not only perfectly legal, but totally under the radar in this debate.

I'm the guy who wrote the Third World Pirate article. I think that the real issue with piracy is that the Internet has made available for millions what in the past was only available for a few. Who hasn't copied music tapes? But from the point of view of the music industry, you could only copy a couple of them to a couple of your friends who wanted or liked that particular band. Now you can upload the songs for millions to download them. Same for games, same for movies, same for books.

Here in Argentina 50% of record sales are pirated copies. You can buy them (along with movies and games) in open fairs, in the street (I've seen cops buying them too by the way), in common shops; piracy is common practice. I know this is, legally, stealing (anyway most people don't stop to ponderate on this matters I guess), but I also know -like it was mentioned in some comments above- that Sony, EA, New Line, you name it, are not expecting revenues from the Latin American markets. Not above a certain marging at least.

This might apply only to third world countries, but in mi case, if I want to listen/read/play/watch something and I can't afford to pay for it "legally", then I'll buy it illegally (for books, there's a place here, in a park, where you can buy new books for a third of their actual market place). It may sound immoral, but life is short and if corporations don't realize that nobody is willing to dish out a substancial amount of their salary on something like a CD because they want to earn a hundred million dollars instead of 90... then bad luck for them.

Also, and this might only aplied to third world again, there are a thousand things I can't get unless I download them, music above all. The market is just too small for some artists to get edited here, and if the alternative exists, is between the imported CD (for a pirce that could mean having to sell one of your kidneys) and Emule. And in regards to movies, I've already seen copies of Spiderman 3 on the street (these are probably copies filmed inside theaters with heads appearing here and there), but consider the movie is coming out NEXT Thursday.

The issues in this thread seem to pop up everywhere--the more I think about it, the more it seems that the piracy debate is a cockpit for the the bigger issue of what 'property' is in a digital world. And the more I think it's maybe one of the worst arenas in which to have that debate.

It got me thinking about things like TiVo, though--who has one and doesn't use their TiVo to skip commercials? Now how does that differ from downloading a game or a tv show? Music might be a different case--musicians get paid after the product is sold--but what's the real difference between someone who works behind the scenes of a game or a show from a compensation point of view? Both probably get most of their money up front, right?

So...that brings up the question: what's the difference between getting on a P2P site and downloading an episode of a tv show, and watching it on TiVo without the commercials? In both cases you get to enjoy the title and you destroy the market. To bring it back to something that came up in the 'digital shoplifter' subthread, what's the difference between a network with no shows, and a network with shows no advertiser will pay them for?

I don't have any sources for this, but from what I've heard it's already affected the decisions of networks: one reason you see so much reality tv and less and less episodic content is that people don't TiVo out the commercials of reality shows as much. Yet there doesn't seem to be much traction for referring to people who use the fast forward button as 'pirates' or comparing them to 'shoplifters'.

Along the lines of what TWP and Capo Taco said, the problem is the technology: we've always been able to skip commercials with VCR's, but (1) it meant having to wait until the event was over to begin watching, (2) it meant watching it in lower quality because of lossy reproduction, and (3) it meant buying lots of tapes and storing them and actually finding them when you wanted to watch the program.

Same problem: the switch from lossy analog on bulky media to lossless (or in the case of mp3s, not lossy enough to make a difference to most people) digital on a medium that never leaves the player brings up all kinds of issues. So maybe...maybe it's time to realize that people just can't make money off of what they create the way they did in the 1900s. I mean, that's basically all we're talking about here: one century of human history. Music, dramatic performance, games--these all go back into human prehistory. Making money off of *selling* media containing those performances into a market, though? Maybe it's just time for people creating those works to find a new way to make money off of creating them like Bongo Bill brought up.

So, I guess as I see it, when we get too loose with the term 'stealing' we run into a bigger issue. Really, it's the question of whether the software/video/audio on that disc I bought is a 'good' or a 'license': is it like a fruit tree, in that I not only get the tree, but also the 'fruit' of the tree (literally and figuratively), and even the right to 'copy' the tree by planting the seeds of the tree? Or is it like my seat in a movie theater, where I get the right to use it for a limited amount of time?

Me? I think maybe we need to start thinking in terms of purchases being a 'mix' of a license and a good. If we don't, I think we're going to wind up in a situation where either the creators or the consumers wind up hurt and progress stalls for everyone. And I feel like settling the piracy debate means settling what the exact nature of the purchase of lines of code is. And in the course of this thread and thinking about the responses I've gotten, it seems to me that it's a far, far larger debate that needs to be settled with a lot more in mind than what the piracy debate raises.

 

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