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File Sharing 101

It was with some eagerness that I recently examined an opinions piece in the Record entitled “Ethics 101” by Noah Susskind ’07. Susskind is planning to major in Philosophy, which would hopefully make his commentary on ethics especially appropriate. My interest, of course, was that his piece dealt with file-sharing on campus.

He begins by stating the facts and offering a solution:

The average Williams student downloads songs without paying for them. Peer-to-peer file-sharing and downloading copyrighted works (without the permission of the copyright holders) is illegal (MGM et al. v. Grokster et al.) But students do it anyway. More alarming, perhaps, is that they don’t stop to consider the ethics of what they are doing.

Clearly, he’s alarmed by the lack of thought that most Ephs display through their usage of copyrighted materials. So where is his solution again?

You can go and read the entire article or you can just skip to the end, where Susskind summarizes:

If stealing music is Generation Y’s attempt to revolutionize the way that music is distributed within a capitalist economy, it doesn’t seem like we’ve put much thought into it.

Abbie Hoffman encouraged our parents’ generation to respond to capitalism with theft – he even wrote a book about it called Steal This Book – but at least he thought about the ethics of his practice. When he led demonstrators to throw fistfuls of fake dollar bills onto the floor of the New York Stock Exchange and laugh at the traders scrambling to pick them up, it required a lot more thought than a button-click does.

The power of the Internet comes, in part, from its ease of use, and with this comes a disquieting tendency to use it unthinkingly. Whatever you do, don’t do it unthinkingly.

Yes, ahem, I think we can all agree not thinking is bad. But that’s hardly a solution. Much like certain philosophers, Susskind seems more interested in asking questions than in answering them. Unfortunately for his readers, his questions betry a troubling misunderstanding of the issues and imply an equally dangerous conclusion.

I think most Ephs would be well served to pick up a copy (or, gasp, download) Larry Lessig’s, Free Culture. It does a great job at summarizing the principal problem of our current age: the increasingly non-free culture we consume.

Susskind, as many have done before him, chooses to focus on the easy, but wrong, argument: that stealing is bad. Liberals from Locke onward have focused on the right of private property. Until recently, however, the concept that “an idea” was private property was never even contemplated. If, in the eighteenth century, I saw a particular chair in my friend’s house that was elegant, I could go home, get some lumber, work for several days, and build a similar chair of my own. Or I could just go to his house and steal his chair, saving me several days of labor.

It is this secondary concept that most conceive of when we think of stealing: taking an item of which there are a finite number, causing someone harm in the process. Obviously, to most people, working for several days to produce a similar chair isn’t stealing. And yet this is the crux of the argument Susskind misses: what today’s chairmakers are trying to do is to tell us that the former use is stealing!

The legal aspects are completely neglected by Susskind, for the United States Constitution clearly states in the eighth section of the first article, that authors and inventors have a limited time to enjoy an exclusive right to their works. If a song is released today, then, it is “copyrighted” for several years, after which it would enter the public domain. Or, at least, that’s how the founder’s clearly intended it.

This is where Susskind ultimately lets his readers down: at the intersection between the law and ethics. For in his mind, they are one and the same. When congress first setup copyright laws, they set a time limit of 14 years. 14 years. Think about that: a limit of 14 years would mean that all songs recorded before 1991 would now be in the public domain. Led Zeppelin. The Beatles. The Rolling Stones. Blues, rock, jazz and the synthesized melodies of the 80’s would all be free for everyone.

The law made sense then: most books weren’t printed after a few years, and hardly anyone bothered to renew their copyrights for the additional 14 years provided by law. (After 28 years, works would automatically enter the public domain, the first 14 could, if desired, be easily renewed by a simple request and fee.) Since those days, the technology needed to produce books, movies and music has been completely rebuilt. Popular movies now move to dvd format within months instead of a year. Best-sellers occupy prime real estate for mere weeks before being shipped to discount stores for rock-bottom prices. In short, as technology has improved, the natural purchasing time limit has shrunk dramatically. And yet, perversely, during that same period, Congress has repeatedly extended the length of the law from 14 years to near-perpetuity. Today, most works published during the 30’s are still under their first copyright period! Few, if any, are even alive to renew the copyrights for most works during that period, and yet because of Congress, the law dictates that no one else must use them.

Ethically, the situation is egregious. There are many simple solutions, however, from shortening the length of copyright periods, to encouraging more users today to take advantage of new systems of copyright like the excellent creative commons, to a greater reliance on music formats like ogg vorbis. None of these methods involve breaking the law or encouraging the theft of private property. Instead, by simplistically portraying the issue as one of students versus artists, Susskind inherently implies that the only rational solution is to crack down on file-sharing. Such a move would be bad for all parties.

The ethics of file-sharing is a great discussion topic to tackle, but tossing out the categorical imperative and telling students “whatever you do, don’t do it unthinkingly” isn’t what most Ephs need. They need concrete solutions so that they can listen to the latest hit songs on their computer without being accused of being theives. Giving them the straight facts on copyright law and the public domain is a better way to start the process.

UPDATE: Susskind responds here.

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#1 Comment By Loweeel On September 29, 2005 @ 4:40 pm

There’s was a very interesting debate between Lessig and Richard Epstein on this issue in MIT’s technology review in July.

Needless to say, Lessig got his clock cleaned, and had no answer to Epstein’s point that nothing precludes GNU-type licensing agreements.

#2 Comment By reed On September 29, 2005 @ 5:00 pm

For the less search inclined:

here’s the Epstein article mentioned

here’s Lessig’s rebuttal

Since both Epstein and Lessig agree that current copyright terms are too long, there’s no disagreement there. And I’m a little fuzzy why people who embrace the GPL are the same as those who embrace proprietary software, merely because they are both founded on an understanding of how capitalism works.

I do find some of Epstein’s arguments unconvincing, such as his claim that “My copy of Microsoft Office may have cost me $500, but that is a tiny fraction of my gains in productivity.” Sure, I suppose. But what if I download a copy of OpenOffice for free off of their website? It does the same thing as Microsoft Office but costs nothing…does that mean we’re much more productive with open software rather than proprietary software? Later, Epstein further muddies his argument by saying, “Governments have fiduciary duties to their citizens similar to those that boards of directors owe to shareholders. Their job is not to satisfy their own ideological predilections; they should buy the software that offers the best combination of price and quality.”

Isn’t that the entire point of open software? That it’s cheaper and less prone to bugs? Governments from India to Spain aren’t moving to open source software because it’s more expensive than proprietary code, they’re doing it because it’s very cheap and reliable.

In any standard system of capitalism, the guy selling a superior product for less money should win. That’s open source software, at the moment.

#3 Comment By Loweeel On September 29, 2005 @ 5:42 pm

Reed — I agree with the bolk of what you’re saying, and I agree that the govt. should probably spend more on open-source because it’s more bang for the buck.

To respond to your criticism of Epstein’s point about Office, I’d respond that Microsoft Office came first. Without it (or another high-price closed-source product), there would be much less of an incentive to invent a cheaper closed-source alternative to divert part of the market.

Another advantage of closed source is that in the case of error, there’s a single source who knows the software, the release version, the issues, and knows it inside and out. As I’m sure you realize, I’m a huge fan of decentralization, but in this case, I’d say that the “troubleshooting externalities”, for a lack of a better term, probably favor MicroSoft and similar producers.

Another issue (which was prominent in the bullshit anti-trust case) was the concept of network externalities. Especially with the various flavors of unix having so many differences, there are some pretty significant educational/training incentives by just needing to know Windows.

And as stable and great as the linux flavors are, many people can’t even handle windows even with its far-too-active help options. Just take a look at Eric Smith ’99 ‘s livejournal for some of his sadly humorous horror stories about the people he deals with.

So, in short, I don’t disagree with anything you’re saying. Just that accessibility to computer illiterates, network externalities, and an easily identifiable troubleshooting source are other considerations as well, and one in which MicroSoft is pretty clearly ahead.

#4 Comment By reed On September 29, 2005 @ 6:09 pm

I’m not a MS basher, by far. I simply recall an earlier time when the same arguments were made by users about a similar office product, namely, WordPerfect. They claimed it was “better, faster and more user-friendly”. They reminded me that “it was designed first”. They said that the users were “too stupid” to move to Microsoft Office.

I hated WordPerfect. In general, I think Microsoft Office is a great product, although it was hardly “first” in any area. But just as 1-2-3 gave way to Excel, it seems like when a better, cheaper product comes out, that we should consider moving to it. You seem to be claiming that all the closed-source office products were there first, regardless of which one came first. Sure, on the Windows side. But even Windows came with lowly Notepad and Microsoft Write for free with the OS. Unixes always had emacs, or vi, which didn’t cost any money.

The best part about openoffice is that it runs on Windows and looks just like Office. Except it’s free. I’m more than willing to give MS credit where it’s due, but if they had adjusted their pricing model to $50 a client instead of $500, I doubt sysadmins would even be considering moving to openoffice.

#5 Comment By Anonymous On September 29, 2005 @ 7:27 pm

Wow. You’ve actually taken the time to analyze an opinion piece from the Williams Record. Does anyone see a problem with this? Why not put your analytical prowess (which you so clearly display here David) to something a bit more important? Jesus Christ…you’re long out of college. Think it’s time to give it a rest?

#6 Comment By Ken Thomas ’93 On September 29, 2005 @ 8:55 pm

Dear all,

I served as Milberg Weiss’s expert witness during the Napster case some years ago, and have therefore have had the pleasure of hearing the arguments around these issues in some depth over the years– Pam Samuelson at Berkeley’s Boalt School of Law began organizing an annual conference on these issues in ’96, I believe, to remember where I picked them up after Mark Taylor.

To move back and provide a short commentary, any understanding of the issue of file sharing etc must begin with some understanding of the history of copyright law in the US and elsewhere.

Briefly, copyright law is a compromise. It balances the need of content owners (those who produce and finance the creation of intellectual “property,” “IP”) with the needs of the public to have free and efficient exchange of information– and to benefit from that access. Without copyright, we could imagine that producers of IP would have no incentive to acheive; however, without protections for free exchange etc., we can also imagine that IP holders would hoard their works– meaning that society could not fully benefit from the value of the knowledge contained in IP, that the flow of knowledge and learning and new solutions would be slowed or, indeed, halted. This compromise is thus a central feature of the vision of a civil society.

Pam neatly summarizes the last major revision of copyright in a tutorial on her website; anyone interested should read her first, as her explanation of things such as the “four non-exclusive criteria” for infringements comes from years of experience that I do not have and is better than any summary I could give. For the truly serious, David Stern taught a copyright seminar in Rhetoric at Berkeley, and its materials combined with Pam’s reading list from her courses will make one more-or-less provisionally competent in the field.

Of note is that prior to Sony (“the Betamax case”), subsequent legislation and the DMCA, copyright infringement was largely a civil matter which might result in civil damages. Legally speaking, proving “infringement” meant juggling the “four non-exclusive” criteria that determined a violation (again see Pam), — and after that, you had to prove real financial damages in order to win a copyright suit, no small feat when we’re talking about a bunch of college kids exchanging music, and when the minimun cost of bringing such a suit might be $100K.

As well, prior laws carved out large areas of “fair use”– scholarship, commentary, sharing and etc., wherein users other than IP holders could make copies without authorization and nonetheless be non-infringing of copyright. This is again a legacy of the fact that from Franklin and the founders onward, American society has been premised on the free and open exchange of information, the competition of different viewpoints in an open market, etc– and the idea that restriction of the freedom and availability of information weakened the Republic. It is by no coincidence that Franklin and so many others were publishers— for the process of publication and exchange was seen as fundamental to the system of government and civil society.

“Copyright” is, after all, merely the right to copy. In this sense copyright infringement has nothing to do with stealing, theft or any criminal act. It is also hard to see that Franklin, the founders or anyone seeing the issue ourside of the narrow perspective of our contemporary situation would have ever imagined criminalizing the simple exchange of information. Making a copy of a language tape for members of a class, for instance, is critically different from taking physical language tapes from your local Barnes and Noble and handing them to your class. What is fair in either situation might be another question, but in the former case you have not taken a physical resource away from anyone– rather, you have produced something new, authorization or not, without depriving another party of something. In the latter case, someone no longer has a resource they once possessed.

IP is simply not physical property, and simple conceptions of the taking of physical property do not apply to questions of copyright infringement. Prior to the DMCA and similar legislative efforts, the law did not generally define appropriation of IP as a criminal issue. Under the current situation in the US and elsewhere, the MPAA and similar organizations are obviously trying very hard to criminalize such acts– for obvious reasons of their perceived self-interest, and for less obvious reasons like the fact that effective lobbying can allow them to shift the $100K cost I mentioned above onto the offices of prosecutors and attorneys general and, thus, the backs of taxpayers. In undemocratic places like Singapore, they have suceeded very easily; in raids in LA and NYC and recently in San Francisco, their efforts have moved steadily forward in some Western democracies; in the Netherlands and the Scandanavian nations and elsewhere, legislators and citizens have steadfastly opposed this course, a conflict which is slowly and steadily working its way to the EC High Commissioner and elsewhere.

As I see it, this is an issue of fundamental freedoms. We should certainly fear the day when people need authorization from anyone to spontaneously create, publish and exchange information. The ideas that have come from Xerox PARC, Sony, the RIAA, MicroSoft and elsewhere about “digital rights management” and such are simply incompatible with free and democratic societies. Do you want a future in which MicroSoft is the “authority” from whom you must ask “permission” before sending a picture of your spouse or child to a friend? The RIAA does. And that is the core of the issue.

Lawrence and many others have been pointing out for quite a while that IP and copyright issues in the US have been turning into a patchmeal mess as the result of lobbying by RIAA/MPAA and others. Interested parties should check out [Brewster] Kahle vs Ashcroft (now Kahle vs Gonzales) for yet another recent turn and perspective on these issues and what is at stake. Both Judge Patel’s and Judge Wilson’s rulings are critical material (and material for which I can provide some close background to anyone who might wish). Finally, along this thread, read the Supreme Court ruling in MGM vs. Grokster (and read it in comparison to some of the rulings that Pam cites, and her critique of the footnotes in which the previous Court suggested that it would not tolerate further encroachments on fair use). For background, if you are on the West Coast, Judge Patel often has breakfast at Saul’s in Berkeley (try Tuesdays); Lee, one of the EFF’s lawyers in Grokster, is the guy with the big Mac laptop in the back room at Schmidt’s Pub in Albany most nights (don’t bother him if he’s working hard, please); Brewster is usually at Alexa’s offices in the Presidio and a friendly talker.

To move back to the characterization of how Williams students share content as “thoughtless theft”– with respect to the writer, well, two points. First, anyone who is talking about file sharing or any other use of IP as “theft” is swallowing Hillary Rosen’s PR releases on the issues hook, line, and sinker. Given that Hillary had $50 million or so to spend on a worldwide campaign to shape public opinion, she did a very good job of organizing a PR campaign that had nearly every paper in the country and world, from national to local, feature an article on file sharing with the words “theft” and “stealing” prominently and strategically and rhetorically well-placed– and, given personal phone calls and guidance from RIAA’s PR people, many reporters often copied & pasted parts of the RIAA’s press kit info into an article. I admire audacity and skill of such a campaign, and certainly learned a lot from watching her execute it. But I also certainly hope that Williams students in PHIL 101 and elsewhere are still being taught how to read what is going on here and insulate their thought from such campaigns– and that our schools and universities are no place for such propaganda. Second, it seems to me that what Williams students are doing with content is perfectly natural and appropriate– they are spontaneously engaging in civil civil exchanges of knowledge, without the undue and prior interference of government. Never forget that men and women lost their lives to secure such freedoms.

Thus, the general argument– made from people like Larry and ClariNet’s Brad Templeton on down to us regular citizens– is that content holders are simply not providing information and knowledge in a modern, simple and efficient manner, given the changes in technology over the past quarter-century, and given the enormous possibilities that technology has opened up. Their side argument is that many file-sharers are leading the way to the future. Even Orrin Hatch believes he should be able to hand his wife or friend an MP3 of anything he has on the shelf, and has been so brave as to threaten the RIAA that he will take action if they continue trying to restrict such rights. I and friends do not download and share episodes of Lost etc. because it is cheaper, but because it is more convenient, especially when we are in Europe or anywhere else where broadcast is not readily available. I would gladly pay any service that made this process simpler and easier, much less one that made me able to quickly and effectively access the content I need at any time, anywhere on the globe. This is what efforts like iTunes are about. And therefore what many on the edge of these issues are saying, Steve Jobs included, is that we need to update copyright law to keep up with the reality of technical possibilities.

Ted Nelson, of course, has been providing a similar and more nuanced commentary for over 40 years, and one of the core concerns of the Xanadu project has always been copyright and due compensation. Ted’s works are freely available online and from several presses. For my part, many years ago, long before meeting Ted, but shortly after meeting John Perry Barlow– to bring up Mark Taylor’s college roommate, another central figure here, and yet another Williams connection– I sat in Jesup, thinking about the forms of “site licensing” Williams engaged in (where you “checked out” one of a limited number of “copies” of Photoshop etc), and imagined an entirely different copyright system. After all, the idea that Williams only had so many “copies” of Photoshop– as if it only had so many physical “copies” of a book on a shelf– was an entirely illusory and false one. If we wanted we could “copy” Photoshop to every machine on campus and have a thosand people getting work done wth this tool. As I realized this I imagined a world where, instead of having access to some software, some content (music, books, video), a Williams student or anyone in the world could sit in Jesup or Sage or a home in NYC or a hill in Tuscany or a field in remote China– and have immediate access to all IP, any piece of software, any book, any song or movie. That is something that was possible a decade ago, and a goal that we should be running towards at full pace.

For those interested, go searching for Mitch Kapor’s idea of Lotus when he came back from Tibet. To complicate everything, stop by Vannevar Bush’s As We May Think and read a few short histories of Vannevar, who was likely more important than most of our Presidents. Consider that these are all the same issues of our society, of democracy, of the Republic, and of the human future.

Rather than paying to “own” any particular piece, what any individual (and society as a whole) should pay for is access to the store of knowledge. All of it, everything ever created, online. We can image different systems and terms– different tarrifs for students and professors and lawyers and PR guys, various methods for compensating the makers of Photoshop and other programs based on how many hours of use a peice of software sees, or by where the resulting work is used (in a college newspaper vs. a bus stop ad campaign, etc.) But the details don’t matter– the point is reaching the goal. The bottom line is that each person has access to a relatively fixed budget for media content, and there is little for providers to gain by competing with each other for a slice of that small pie. The principle effect of file sharing at Williams and elsewhere is not to enable students to avoid paying, but to enhance the number and breath of works and knowledge that a student has access to. Thus, what providers should be doing is co-operating through a market system to maximize the value of enhanced availability and profit from the results of this added value.

Rather than blindly acting like we still live in a bygone era where it costed to produce a physical copy of IP, and in which we therefore needed to divide our IP budget between the objects we needed most, –we should realize the future is now. There is now essentially no cost to the duplication of IP; no cost to the replication and spread of human knowledge. In our time, there is no resource or cost barrier to each of us being able to spend more-or-less the same as we do now to have access to everything— and to then divide that expenditure of wealth among content providers according to the use we make of their works. The hard work here is to create new and effective market mechanisms in a true Information Age, to ensure both the free spread of knowledge and that its producers are fairly and duly compensated for their work.

In the past decade, I have seen precious little progress towards this goal. Yet it seems to me both the natural progression, and the only path out of the current morass of IP regulation and what Pam Samuelson has called a “punitive war” against those who freely share knowledge that should be freely and fairly available in any case. In the end, such a system would dramatically increase access to knowledge, learning, and thus productivity. It would raise our production, the speed of our scientific and cultural achievements, and our GDPs, providing increasing wealth to both IP producers and society as a whole– the classic goal of the copyright compromise and of civil society in general. It should also move us into a more stable and democratic world.

To give an example, in one of my current projects, I provide students with Palm PDAs that have a semester of Pimsleur’s audio learning materials for a language such as French or Hindi. Result: the students carry these around, absorb the material and practice in their spare or “down” time on buses etc– and get through a semester of a language in a few weeks instead of trudging through ineffective and inefficient university courses that were designed with and around technologies available a millenium ago, and with the difficulty and time contraints and expenditures of reaching language labs, and so forth.

To underscore the importance of such a project, and to more away from academic scenes and discussions, two weeks ago I saw noticed two white Army boys here in Kentucky, reading newspapers in Arabic in front of a small-town cafe. I stopped briefly to chat with them about their views on how to prevent catastropic war (“diplomacy,” they answered immediately) and the need to understand the daily pace of the Middle East. Imagine the impact on the national security of the United States if every American had simple access to the IP above, and if many members of our military and our civilian citizenry could easily follow and contribute to the sudden flow of ideas that is emerging in the Middle Eastern countries. Imagine if we could give those two farm boys a fluent listening and reading knowledge of Arabic in six or eight weeks, and go from there. Imagine where democracy might.

Well, at least that’s one of the places I hope to go. I hope that some of you Ephs out there will help, given the nature of what is at stake, given that so many of the names above are closely connected to Williams, given what we might bring to Williams and world by following such paths.

As always, more later. I will resist the temptation to talk about what Bill (Joy)’s doing with OpenOffice, about John Walker’s first efforts at translating MS Word formats, about…



PS. And poohey on whoever wrote that it is a waste of time to respond to an opinion in the Record. This is like saying it is unimportant to spend time answering childrens’ questions about the color of the sky and the smell of flowers, and I hope the anonymous writer is not long out of college. The Record author will be alive and exploring these issues when I am long entombed, and our children and students’ eyes show us the emerging world around us viewed new and fresh– and we follow and develop that vision, providing what we can from our stock of dead knowledge, hoping for renewal, knowing they are our only future, hoping one day they will be more than us. This is how we reach and engage and educate– (with thanks to the many Williams people who showed me this).

#7 Comment By David Kane On September 30, 2005 @ 8:46 am

Great post!

1) A cowardly anonynmous commentator seems to credit this fine writing to me instead of Reed Wiedower ’00. As if!

2) DeWitt Clinton ’97 provides a thorough review of various music services. His musings on The Disk are thought-provoking.