Pogue and the ick factor

Usually when I talk about copyright I do so from the economic perspective -- what IP environment creates the maximum long term public good (ie. people pay marginal cost, there is incentive to create). Generally, I'm not a fan of David Pogue, but this note does a good job of outlining the ick-factor, people's gut instincts, on what should and should not be permissible.

So, if you'll permit a little dead-horse beating, I'd like to return this week to the cheerful hornet's nest that I stirred up in my e-mail column two weeks ago, concerning copy protection of music and movies.

See, I'm a former professional musician and a current author whose books are currently circulating online in PDF form, not contributing a cent to my kids' college funds. It burns me up to think of the long days and nights I pumped into those books — and the freeloaders who are now reading them without paying.

So yes, I'm instinctively annoyed at programs like PyMusique, which lets you buy songs from the iTunes music store without any copy protection. If all people wanted to do was "liberate" their songs for their own personal use (to stream to their TiVos or Roku Soundbridges, for example), I'd be all for it. The problem is that once those songs are unprotected, the temptation for some people to upload them for online swapping will be too great to resist.

Now, I consider many of the responses on the Pogue feedback boards to be irrelevant nonsense: "Record companies make too much money anyway," "I should be able to play iTunes songs on players besides the iPod," "Musicians do it for the love of the art, not payment," etc. (Even if that's all true, none of it matters. When you buy from iTunes, you agree to abide by the terms of the purchase. If you don't like the terms, shop elsewhere; you can't just violate any law or contract whose terms you don't care for.)

Yet some of the comments were extremely thoughtful, to the extent that this black-and-white issue began looking grayer and grayer.

Here are some of the questions you posed, and my answers. As you can see, the copy-protection issue gets murkier by the moment.

• "Is it a violation when I borrow CD's or DVD's from my local library?"

Clearly not.

• "What if I borrow a CD from the library and then rip the songs onto my iPod?"

I'm guessing that's illegal, too.

• "What if I buy a DVD and want to copy it for myself in the event the original gets damaged?"

Well, that's illegal, too — but it shouldn't be. If you bought it, shouldn't you be able to do what you like with it?

• "I have a significant vinyl collection (2000+ LP's). I've already paid the artist, I've already paid the record company. In fact, I have cassettes of some of that music — I have even had 8-track duplicates. How many formats/versions am I expected to buy? I see nothing wrong with downloading a copy of a song I own that someone else has already ripped from vinyl. I could do it at home, but why bother?"

Gulp... I see your logic. And similarly:

• "I duplicate Blockbuster's DVD's for a very good reason: Over the years, I've bought thousands of dollars' worth of movies on VHS tapes. Why should I have to buy all new ones on DVD, just because the industry forced a format change on us?"

Does seem pretty offensive, I agree.

• "It's perfectly legal for me to record a movie off of HBO on my set-top DVD burner for my collection. So why is it illegal for me to make a copy of a friend's DVD?"

I — I don't know.

• "I have 200 cassette tapes I made from my vinyl LP's so I could play them in my car. Am I supposed to be losing sleep over the royalties 'lost' to those artists and record companies?"

I don't think so.

• "The argument that music and art will suffer if free file-sharing is permitted HAS NEVER BEEN SUPPORTED by any facts."

This may well be true. In fact, I read that in Australia, CD sales have actually INCREASED in the era of file-swapping. That gives more weight to the argument that sampling songs online makes people more inclined to buy the albums, as well as to the argument that the U.S. recording industry owes its annual CD sales decline to other factors (such as, "Everyone's finally done re-buying CD's of their favorite old tapes and records").

So yes, I see validity to all of these arguments.

And yet I still can't go as far as, "SHARE FREELY AND BE MERRY!" (which was the closing comment of the "HAS NEVER BEEN SUPPORTED by any facts" guy).

The solution, of course, would be to make all music and video freely copy-able for personal use. But how do you stop people from exploiting that in an effort to get around paying for the stuff to begin with?

I'm not the first person to be snagged on these thorny questions, of course. A recent Times article points out that the Supreme Court justices are hashing through precisely these issues in a case that pits Hollywood movie studios against Grokster, a file-sharing network.

But, you know. Supreme Court, Schmupreme Court. What do YOU think?

I've lifted the article root and branch, probably breaking copyright laws to do it. *Yawn*. I don't think David will mind though.