Online Shoplifting, continued

digresssmlOriginally published April 20, 2001, in Comics Buyer’s Guide #1431

Well, this has been interesting. Since my earlier column talking about net thievery and Harlan Ellison’s fight against same, I’m pleased to say that the majority of feedback I’ve received on it has been quite positive. At the very least, folks seem to be understanding why the current electronic assault on copyright is A Bad Thing. Some of the emails, however, have gone in some interesting directions. The first is from S. Drescher in Austin, Texas:

In your column in CBG #1428, you ended with the statement that “right is still right, and wrong is still wrong”. I take it that you feel that it is right to misrepresent what the encoding on DVDs does? CSS doesn’t protect DVDs from being copied–anyone with the right equipment can make an exact duplicate of an encoded DVD, which can be played just like the original, just like a copy of an encoded paper document can be made and then decoded just like the original.

What CSS does do is to control how consumers can watch DVDs which they have purchased. Imagine if you purchased a book which could be read in the United States, but is unreadable if you take it to Germany, or could be read under incandescent light bulbs but not under fluorescent bulbs? That’s what CSS does. If you purchase DVDs in the United States, and move to Germany, you’ll have to purchase another copy of most of your DVDs if you want to watch them there–not because the DVDs are worn out, but because CSS will prevent them from playing on German DVD players. And if you want to use the DVD drive you purchased to watch the DVDs you purchased under the Linux operating system, forget it, because CSS ensures that only software companies that have paid the appropriate kickbacks to the DVD CCA can play the DVDs, and that software was only available for Windows and MacOS. For some silly reason, some people felt that they should be able to play the DVDs which they had paid for, and the only way to do that was to crack the encoding.

I neither upload nor download pirated audio, video, or text, but as long as the DVD CCA insists upon controlling where and upon what equipment DVDs can be viewed, I won’t be watching any DVDs. I hope that in the future I can depend upon your honesty to refrain from repeating the myth that DVD encoding is intended to protect the contents, when it is truly intended to control the consumer.

All I know in regards to the encoding and duplication of DVDs is what I read in the newspapers, and they basically presented it as simply an anti-duplication code. It’s really more of a side issue to what I was really talking about, namely that no matter how many built in safeguards one produces to prevent copying, someone, somehow, will crack it.

That said, I gotta tell you, I understand your being torqued on this matter. My guess is that variation in DVD playability (not to mention VHS playability) extends from copyright concerns, release dates in various countries, and other legal concerns. But man, it bugs me as well. For years the only reason I was able to have Return to Oz and Song of the South on laserdisc was because I obtained Japanese editions. Nothing was being stolen from anyone or infringed upon as far as I was concerned: I paid for them fair and square, including the pricey import costs. It’s bad enough they’re coming out with new DVDs in America that older players won’t play; but if you buy DVDs on the up-and-up from aboard, it bites the big one that they don’t play here. (Although for what it’s worth, Pioneer finally agreed to give me a free upgrade on my DVD player.)

In any event, I appreciate the clarification, and although I’m not intending to boycott DVDs (it’s not practical; laserdiscs are being phased out and I sure ain’t going back to videotape) I certainly feel your pain.

And then there’s the following letter from P. Darcy (actually, two letters, the initial and a follow-up, which I’ve edited together):

I feel that the issue that you wrote about is not quite (as) black and white as Mister Ellison believes. I should also say that I am a Napster user, but I have never and would never download an entire book. The library is up the street. Which leads to my main question: When is it stealing?

If I buy the latest issue of Captain Marvel (BTW, I enjoy and am really looking forward to the Starlin issues), I read it and then lend it to my friend, did I steal from you? What if I sell it on eBay for $1 or $100? Did I steal from you, or Marvel, or Jim Hanley’s Universe? Since comics and sci-fi are considered collectibles, there will always be a resale market. Hasn’t the internet just opened up a new mechanism for delivery?

It’s my belief that the original online “sharers” of the books, music, whatever, were probably a close-knit group of friends and/or fans trying to expose each other to other works. For sci-fi books, it may be that the book is out-of-print, and the potential buyer may want to get a copy. Is it stealing from the creator if he/she downloads the book as opposed to buying it at a used bookstore, where the creator gets no piece of the pie?

I thank you for the perspective that you provided in your column. I don’t want to be thief, so I will stop downloading songs. But I would like to know if you think that there is a line between stealing and sharing and where it may lie.

Quest Communications even has a not-so-farfetched commercial where a guy goes into a dingy bar with one beer on tap and only peanuts for food, but he has access “to every song ever recorded by every artist, ever”.

I don’t know what the answer is, but I do remember this from my graduate MBA communications classes. Every time there has been a new introduction of technology, there has been the screams of bloody murder from “content providers.”

Movies were to be the death of theater.

Radio was to be the death of newspapers.

TV was initially to be the death of radio (and eventually the movies.)

Cable was to be the death of broadcast TV.

The VCR was to be the death of the movie industry (they did not want them to be able to record).

In each instance, the existing technology had to have an adjustment period, while the new technology found its niche. Perhaps what will happen in the not so distant future is that a regulatory body will be established, not unlike the FCC, to govern and lay ground rules.

Thanks for your time. I know that I’ll continue to enjoy your “stuff” and will GLADLY pay for it.

You raise a couple of interesting points definitely worth addressing.

If you lend out your one copy of a book, there’s only one copy to go out, and (theoretically, at least) it has to be returned. Same deal with a library. Neither of these activities is going to have an impact on the bookshop down the street. But now picture if you will a library that opens up which has infinite copies of every book. And once the book is removed from the library, it never, ever has to be returned. It becomes the property of the person who took it out. How long do you think the bookshop is going to last?

Don’t believe me? Look at the real world. If you run a small, independent bookshop, and a Borders opens down the street, the odds are that you’re going to be kissing your business goodbye. You simply can’t compete with the massive availability and range of services the Borders offers. But at least Borders is still generating income for writers and publishers. Now imagine that down the street from Borders opens a store—Interstore—that has everything Borders provides, plus it’s all for free. Borders is pretty much screwed. The downside is that Interstore doesn’t generate so much as a penny for writers and publishers, but hey, that’s not your problem, right? You’re just the customer, and heck, information should be free (or so the chant goes). Except it becomes your problem when the writers can’t make a living at their craft, and the publishers go out of business.

If you want to lend out your copy of Captain Marvel, go right ahead. It’s your book, you paid for it, and on the one-to-one basis that such loan-outs involve, you’re not doing anyone any damage. If you can get big bucks for it on ebay, God bless you, knock yourself out. That’s hardly going to bring entropy to Jim Hanley’s Universe. But the kind of one-to-one interaction you’re talking about is simply not comparable to a Napster or a webpage theft of a manuscript, which thousands of people can seek out simultaneously, all of them download at their whim, for keeps, and engage in this practice in lieu of supporting the artists who produced it.

Artists, writers, musicians, don’t have wealthy patrons anymore, outside of corporate grants and government sponsorship, and there’s always someone advocating that government has no business supporting the arts (sooner or later enough people will believe that, at which point say good-bye to PBS.) They need the support of, as PBS says, “people like you.” But if people like you are engaging in routine and widespread downloading of that which once provided the bread and butter of the artist’s life, then you’re participating in a practice that can, and will, drive people and publishers out of the field.

As for the predictions of gloom-and-doom that you listed above, all of which purportedly turned out to be merely alarmist, the quick answer is that virtually none of them—with the exception of videotapes—had a thing to do with copyright infringement. But let’s take a quick look at the list:

Movies were to be the death of theater? They haven’t exactly helped. Once upon a time, the stage was a source of dramatic ingenuity, daring and reinvention of the form. But now, rather than stage new and original shows, producers are rehashing movies in order to open with a guaranteed audience: The Lion King, Saturday Night Fever, Footloose, The Producers, the proposed Jailhouse Rock. And when movies are made of shows that are still running, the movie invariably kills box office.

Radio was to be the death of Newspapers? Since the advent of radio (and TV news), newspapers have shrunk in quantity and quality. Hundreds of once-great newspapers have folded as more and more people get their news from sound bites off TV and radio. New York City once had nearly a dozen major newspapers; it’s now down to three (two if you don’t count the Post.)

TV was initially to be the death of Radio (and eventually the movies.) TV did kill radio. Once upon a time, radio was the home of the greatest entertainment available. Variety hours, dramas, mysteries, westerns, sporting events. Go watch Woody Allen’s Radio Days to get a feel of what it was like back then. The pathetic thing that sits in your car dashboard or wakes you up in the morning pales in comparison.

Cable was to be the death of broadcast TV. Too soon to tell.

The VCR was to be the death of the movie industry (they did not want them to be able to record). Producers underestimated the power that a big screen still has to offer in terms of storytelling, not to mention that the movies remain a good place to go on a date. But it wound up skewing movies to appeal to those audiences: Lovers of spectacle that will look crappy shrunk to a small screen, or teens looking for a date movie. And again, it’s too soon to tell the full ramifications of these changes.

Just because a change doesn’t incur the ultimate penalty—the demise of a form—doesn’t mean that it doesn’t wind up having some sort of negative impact. The degree of that impact depends upon just how dramatic the change. And believe me when I say that wholesale theft with worldwide, instantaneous availability, is extremely dramatic. Just as dramatic is the need to protect the interests of those who created the work, which is why I again urge both fans and, particularly, people in the creative community, to support Ellison in his court case.

As for the question of why shouldn’t out-of-print books be available for free on the internet: Howling Mad, one of my early novels, went out of print some years ago. Penguin Putnam, the publisher, brought it back into print about a year ago. That generates income for me. But if the book were available for free to anyone who wanted it off the internet, to a sufficient degree that no one was going to bother buying the book when it was reissued, how likely would the publisher have been to reprint it? Not very. And the income internet distribution would have netted me? Zip. That’s why it’s called copyright “protection.” It’s designed to protect writers from exactly this sort of situation.

Will internet theft cause the death of creative endeavors as we know them? Too soon to tell, I suppose. But it sure may send the patient into life support.

(Peter David, writer of stuff, can be written to at Second Age, Inc., PO Box 239, Bayport, NY 11705.)

 

16 comments on “Online Shoplifting, continued

  1. If only S had really known the shape things were going to take. The more accurate concern is whether or not digital comics are going to be the death of physical comics. So far, no. Not yet, anyway. But even I, a stickler for the old medium who loves the tactile feel of pages on my fingertips, is starting to believe reading comics on my iPod Touch would be better because I’m tired of long boxes. Unfortunately, this means bye-bye comic shop!

    I honestly believe that the supposed damages of online piracy are curbed by the availability of affordable digital content. Marvel Unlimited as well as Comixology give people fewer excuses. It’s available now, and there are sales! Of course there will still be people who will download without paying, but they were never going to pay in the first place. There will also always be people who reproduce physical objects and try to sell them (sometimes successfully). You can’t stop those, but you can turn a profit out of people who want something in a certain format by providing it for them.

    1. “But even I, a stickler for the old medium who loves the tactile feel of pages on my fingertips, is starting to believe reading comics on my iPod Touch would be better because I’m tired of long boxes. Unfortunately, this means bye-bye comic shop!”

      So, where exactly are you storing all these digital comics that you read on your iPod Touch? Sure, there’s “The Cloud” but “The Cloud” is mere technology and is susceptible to “going down” just like cellphone service or internet service. (In fact, “The Cloud” has experienced many outages; sure, they’ve been just temporary, but you can’t very well pull up a digital comic and read it by candlelight during an outage. There’s also the fact that your device is susceptible to a loss of power.)

      And if you’re not concerned about the storage aspect of your digital comics, then why are you bothering with long boxes anyway? Just read your comic and throw it out or donate it to a library when you’re done. Voila! No need for long boxes.

      1. Wow, that’s a lot to parse out from that paragraph. It’s very interrogative and basically says, “Let’s argue over this!”

        But right now I’m taking a break from collecting for various personal reasons, which means I’m neither settling for the disappointing comic shops in my new area nor buying digital comics in their place. I’ve long been hesitant of the digital services because I know that, at best, I’m paying for individual subscriptions until something breaks, is discontinued, or the service comes to an end.

        Within the past year, I believe, Comixology switched to DRM-free backups of all purchased books. In other words, comics I buy through the service can be downloaded as a PDF or CBZ file to my computer for actual storage. Doesn’t sound like a bad deal. I know that my hard drive is susceptible to no longer working at some point, but that’s no worse than the possibility of my basement flooding.

        And I am concerned about the storage aspect of my comics because I like the idea of being able to go back to something I paid for, especially as the price of comics creeps closer and closer to $5 a book. I’d be happy to recycle things when I’m done with them if they were printed in a format similar to the manga “phonebooks” of Japan. Then I’d be more likely to buy the collected volumes, too, if I enjoyed a story and wanted to keep it around. But that’s not the case. So I buy the comics, refer back to them every now and then, and lend them out to friends to say, “Yeah, you’re missing out on some great Spider-Man/X-Men/Transformers stories. Read these and tell me I’m wrong!”

  2. One question I keep wanting to see answered by authors is simple – what is the appropriate *length* of copyright? The original 14 years? The expanded 14 years, plus an available extension of 14 years? 28 years plus an extension? The current period of 70+ years? Should it be perpetual? Note: “life of… plus” doesn’t work – a significant number of copyrights are held by corporations. How do trademarks fit in – tricks such as the ERB Estate trying to use trademarks on the name “Tarzan” and “John Carter” to prevent the republication of works that have gone into the public domain?

    1. The corporate authorship is a product of merging systems but isn’t really a problem in countries that have longer experience of author’s rights and copyright for life + and have already had to deal with these problems. It’s best handled by not having the legal fiction that an employer or corporation can be an author. Our copyright law in the UK has a similar concept to “work for hire” whereby the default is that when creating in the course of employment the employer not the author gets the copyright unless the contract explicitly states otherwise (in all other situations the author is the default first copyight holder but again commissioning contracts can transfer it), but the author remains the author with all the author’s moral rights. For standard collaborations like films, the key personnel posts are identify and copyright is based the lifetime of the last survivor. And if the author can’t be identified either by anonymity or a truly corporate collaborate effort then adopt the default that 70 years lasts only from first publication unless the author is identified in the meantime – and copyright holders thus have incentive to identify them.

      Trademarks are a more complicated matter.

  3. I’d say i couldn’t understand why people who have no difficulty with people who build a corporation or an apartment complex or an office building passing it on so that their children and grandchildren continue to live on think that creative artists (let alone their children etc.) shouldn’t be entitled to the same rights in their work.

    I know the answer – creative work – writing, painting, writing/performing music – that’s not actually “work”; not something you have to labor over.

    Forget that it took you two years to write that novel or finish that album – i could do that stuff if i really wanted to bother, so why should i treat you like you did something special doing it?

    I remember when a teenaged guitar-strangler in a “band” here in Atlanta dismissed the playing of Richard Thompson as “overrated” (specifically on “1952 Vincent Black Lightning” – if you don’t know it, check it out on YouTube; remember as you listen to it that there are no overdubs and nobody but RT playing).

    I offered to let him have the CD for a month so he could learn it and show me how much better he could do it … on an acoustic guitar, like RT did it, of course.

    He backed down.

    1. The issue with perpetual copyrights is that it would prevent derivative works. And “derivative works” can apply to darn near everything. If Shakespeare’s heirs owned the rights to his works, a lot of great (and even more not-so-great) works would have been impossible to make.

      Rather than being like handing down a corporation or apartment complex, it would be like handing down the concept of corporations or apartment complexes.

    2. I really appreciate this comment, especially since it made me have to really think about whether or not the analogy holds. J Leeds has a great response already, but there’s more to it.

      An apartment complex or corporation needs continual upkeep and management in order to perform its function, whereas a creative work is (arguably) complete when it is published. The Mona Lisa doesn’t need continual work done in order to perform its function as a beautiful work of art for people to behold. Someone running an apartment complex needs to make sure that the units are still livable and rentable so that people can move into them.

      A closer analogy would involve an oft overlooked creative force, the construction worker. The construction crew may build the apartment complex or the corporate building, but they don’t continue to own that building once it is finished. But I realize that going deeper into this analogy might go into a further discussion about work for hire, which we don’t really need to do.

      1. Another thing to consider to determine if the analogy holds is that when somebody inherits a building he has to pay taxes on the value of the inheritance. If he/she can’t affort those taxes he/she may be forced to sell it. Is there a similar tax when work rights are inherited? I am really curious to know.

    3. As has been said, apples and oranges. If my father had written The great Canadian Novel, I might still be able to rake in the bucks from it without raising a finger, save maybe to cash in the cheques. If he’s handed me a business or a building, I’m probably going to be spending some time and money on its upkeep and running them. Bit of a difference between being responsible for the maintenance/running/upkeep of a place/business, and getting money for nothing off someone else’s work.

  4. That’s actually not a great analogy, as the Mona Lisa and other historical paintings require specialized teams of conservators to keep them intact. The right to show and profit from art is an interesting subject, however. Whether the art gallery owns the rights to the image depends on the terms of acquisition; it’s quite common for an art museum to have the right to show an artwork in person but not on their websites or merchandise. Renaissance paintings might be in the public domain, but the photographs used in books are often the copyright of a specific photographer.

    The rule of death plus seventy years is the most fair to all concerned. If copyright expired after the artist’s death, it would create a disincentive for publishers to work with aging writers. Why buy the rights to publish something if there’s a chance you’ll lose your investment in a few years?

    Usually, the first generation to inherit the rights to an artist or author’s works has serious responsibilities that come with the remuneration. Many artists’ careers are consolidated by retrospective exhibitions after their death; these are arranged at great effort and expense by their heirs. In the previous thread, I mentioned Christopher Tolkien’s work on his father’s unpublished volumes, without which Middle Earth would be far less complete. Consider also Ian Fleming’s estate, which was able to commission official sequels by other authors to continue the James Bond novel series, and maintain the integrity of the film franchise to this day. It is (correctly) assumed that an artist’s immediate heirs will be in the best position to respect their wishes. Given that many writers live from paycheck to paycheck, being able to pass on valuable copyrights to the children or dependents is also an important peace of insurance.

    Let’s put it this way: When George R R Martin inevitably dies and leaves his epic series unfinished, the current copyright system guarantees that we’ll get official novels that will be in line with his wishes and original ideas, rather than a deluge of hack jobs from every publisher out to make a quick buck.

    1. I find it interesting that in both your examples, the Mona Lisa and A Song of Ice and Fire, both works are unfinished. One wonders copyright law covers fan attempts to finish such works, particularly works of literature.

  5. Regarding the the DVD encoding in the first email this is mixing up two separate encodings.

    One is fairly standard anti-copy protection which invariably gets cracked. One version, Macrovision, did bring its own problems. A number of people wound up connecting their DVD players to their VCRs and playing them through them, either because their TV didn’t have the correct socket or a spare for direct plugin or because their cabinet holes were too small for SCART plugs or other reasons. But on a number of early DVDs the protection encoding triggered and rendered playback impossible. You can imagine the nightmare of a retail manager facing a string of returns of product that played fine on the store equipment. This kind of encoding that punishes some legitimate users just encourages piracy because the encoded version is more user friendly. (It’s like a lot of computer games with messy protections over the years like lenses that don’t work on all screen sizes & sometimes aren’t even the right ones, or requiring the computer is constantly connected to the internet despite the game play not needing it and connections sometimes dropping.)

    The more annoying one, and I’m no doubt biased as I’m Region 2 based, is the region coding. VHS didn’t come with this and in a lot of PAL countries by the mid 1990s video recorders were increasingly offering the ability to playback NTSC tapes, mainly from the States but also manga from Japan. DVDs coincided with the rise of the internet and it seemed likely there’d be a lot of imports of films and shows that weren’t available in one’s own country or where the local DVD has worse features. DVD players in Europe generally included NTSC playback because of the demand (IIRC Japan is also in Region 2) and there was even talk of just releasing NTSC DVDs here (although not everyone’s TV was wired up to handle the modified signal – and retailers really didn’t want to be the ones to face opened returns). Region coding was a pain but a lot of early dealers would sell modified players with the region lockout cancelled and if you were brave it was fairly easy to find instructions online to DIY chip them. But it’s my understanding that both PAL playback and region free players are much rarer in the States because there’s very little demand for it. Peter’s seeming lack of knowledge of this in 2001 suggests it didn’t get much coverage and it seems it still doesn’t – a few years ago Barack Obama thought he’d give Gordon Brown a gift of a load of classic movies on DVD but they just wouldn’t play on the equipment at 10 Downing Street.

    1. “But it’s my understanding that both PAL playback and region free players are much rarer in the States because there’s very little demand for it. “

      Yes and no. They’re “rare” because so few people (compared to the entire DVD/Blu-Ray buying population) actually bother buying them. They’re not rare in the sense that issue #1 of low print run super hot comic that only became hot and in demand after it hit the shelves. You can’t find super hot comic #1 because it’s genuinely rare due to low print run. I can go online and order a region free player in minutes and have it by the end of the week. I even know a few electronics specialty stores where I can buy them.

      And they’re not very expensive.

      I’ve toyed with buying one a few times because my favorite Britcom has never been given a US DVD release while it is (or has been in the past) available in the UK.

      http://www.youtube.com/watch?v=xQZeacANFwc

      I’ve chosen not to so far though. I tell myself it’s just or Shelley, but I know I would end up broke by year’s end on about two dozen other shows as well.

      1. While I’ve not investigated this myself, I’m told that most of the newer DVD/Blu-ray players can have the region coding deactivated by entering a certain keystroke combination on the remote. I don’t know how valid this is.

      2. While at least in theory, such would be a violation of the BluRay licensing agreements I expect – since I am reasonably sure the DVD Consortium learned from the first round of region-freeing DVD players, it’s likely that many of the smaller Asian producers do include such a feature in their firmware, as it prevents having to handle tooling for multiple firmwares for products to be shipped to countries where the region blocking is actually illegal (New Zealand being one example, I believe). I expect the larger companies may source their firmware from the same places, so it would not surprise me if 80% or more of the BluRay players from Asia and the Pacific Rim do have that feature – it’s just not announced very loudly.

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