Don’t make Kiwis wait

January 10th, 2012 at 2:13 pm by David Farrar

In my blog at I propose:

New Zealand should ask for the US to commit to a law change that any copyrighted material released in the US for sale, can also be immediately sold (or re-sold) to New Zealand consumers.

So if a US studio releases an episode on iTunes for 99c the day after it is broadcast in the US, then no more blocking New Zealanders from being able to buy it.

Such a law change would probably do more to reduce infringing file-sharing of TV shows, than any amount of punitive measures.

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65 Responses to “Don’t make Kiwis wait”

  1. iiq374 (262 comments) says:

    I’d go further and require them to remove the (probably illegal via WTO) region coding of all media.

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  2. bhudson (4,740 comments) says:

    DPF,

    Just to be clear – you believe the State should be able to force property owners to sell their goods? That the State can dictate whom they sell them to and when?

    Because that would seem to be the effect of what you propose

    [DPF: Copyright is a manufactured right which balances rights of consumers and rights holders. If it was an absolute right for rights holders we’d be paying the Estate of Julius Caesar every time we quote from his war commentaries, and Caesar’s estate would have sued Shakespeare.

    I am not saying anyone should be forced to sell anything. I am saying the law should not prevent parallel importing effectively when it comes to TV shows.]

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  3. Weihana (4,583 comments) says:

    bhudson,

    The state already does that. If someone opens up a shop they cannot discriminate against consumers because of their race thus forcing them to sell to all races if they sell to any one race. So in principle not much different though for quite different purposes.

    Besides, what is the reason for the delay in getting media to foreign markets like ours? Do they actually make more money? I would tend to think not since the delay does encourage people to downloaded TV episodes from the internet thus they miss out on the opportunity to advertise to those viewers.

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  4. bhudson (4,740 comments) says:

    DPF,

    The copyright holders have the right to choose the distribution channels they will sell their products through and to negotiate commercial agreements with them. If they choose exclusive, or a limited number of, distributors they are fully entitled to do so. This is entirely consistent with the free market and the copyright holder may choose to limit their immediately addressable market in return for other benefits as they see them (a cost/benefit decision for them to make.)

    It is possible that their choice of distribution channels will result in some locales not having access to the material immediately, if at all. That remains the right of the copyright holder to determine. The obvious advantage of maximising revenue and margin through having the largest addressable market possible provides an incentive for them to achieve just that.

    I agree that legislation or regulations that might otherwise prevent the copyright holder from making their material more widely available (by their choice) should be abolished. I would support changes that would make that easier. But I would not support change that erodes their commercial rights.

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  5. Richard29 (377 comments) says:

    I love the anti piracy ads “You wouldn’t steal a car”

    No I wouldn’t – but the analogy doesn’t stand up. If I could walk up to somebody’s car and make an identical carbon copy for my own use while leaving them their car – well I’d find that pretty appealing :)

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  6. Richard29 (377 comments) says:

    The economist had a good graph on this the other day.
    http://www.economist.com/blogs/graphicdetail/2012/01/old-and-new-media
    You know your business model is in trouble when burglars can’t even be bothered stealing your products when they have the opportunity.

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  7. DRHILL (121 comments) says:

    One of my main gripes is even though we updated our copyright laws (and may have to again because of the free trade agreement), there has been no contribution (money or content) to the internet link between NZ / Australia and USA.

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  8. bhudson (4,740 comments) says:

    Weihana,

    While I agree to the point about not discriminating on race, business are able to refuse service [without research I imagine that right of refusal only applies if it doesn’t contravene other NZ law, such as the Bill of Rights.]

    And while I would contend it is a bad analogy in either your example or the adaptation I am about to make, to make it more relevant to the accessibility DPF refers to, the example would be that NZ law does not require NZ shopkeepers to make their goods available to people residing in in other countries. Or even in residing in other parts of NZ for that matter. (I am sure the same applies within the US.)

    As for the reason for the delay in making media available to other markets, I can’t answer that question. I imagine they probably think they are best able to manage commercial advantage and maximise benefits using the channels they choose, but I don’t have any particular insight into their decisions.

    For the record, I support removal of legislative or regulatory barriers to making the material available, but not forcing the copyright holders to have to make it available – how they choose to sell and to whom is their decision to make. The principles of economics and sound business sense provide incentives for them to want to maximise their addressable market.

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  9. bhudson (4,740 comments) says:

    @Richard29

    No I wouldn’t – but the analogy doesn’t stand up. If I could walk up to somebody’s car and make an identical carbon copy for my own use while leaving them their car – well I’d find that pretty appealing

    Then you would have stolen their intellectual property (and that of the many suppliers of components that go to make up the car.) And, essentially, that is the point for software or other electronic content such as downloading movies and TV content – copying it is still taking the property of the owner.

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  10. Graeme Edgeler (3,289 comments) says:

    Just checking … you are proposing to change the law so that, for example, CBS cannot enter into a commercial agreement with TVNZ promising them first dibs on airing episodes of the Big Bang Theory in New Zealand before they are available by other means (even for short periods).

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  11. Weihana (4,583 comments) says:

    I tend to agree that self-interest should govern whether a rights holder wants to release their material to certain markets. Intellectual property rights surely outweigh our desire to get the material sooner. If we have a problem with it we know where to go.

    The reality is that the rights holders are on a hiding to nothing. Internet speeds are getting faster and faster thus making truly anonymous sharing more viable. Artists will have to adapt to new revenue streams, and many already have. Concerts used to be a way to promote a CD yet now the CD is a way to promote the concert.

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  12. Kimble (4,443 comments) says:

    Then you would have stolen their intellectual property (and that of the many suppliers of components that go to make up the car.)

    Now imagine the technology to copy a car actually existed. How would it change the amount you were willing to pay for a car?

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  13. MikeMan (173 comments) says:

    As I said on Stuff (and not 100% sure it will make it past moderation)

    I would pay $USD7.99/Mth for Hulu Plus and top up al a carte.

    This would actually save me a decent amount of money, esp. if Hulu did a deal with Telecom for local caching.

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  14. bhudson (4,740 comments) says:

    Now imagine the technology to copy a car actually existed. How would it change the amount you were willing to pay for a car?

    That would depend on how much it cost to get hold of the technology. And how difficult it might be to escape the long arm of the law.

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  15. gump (1,661 comments) says:

    Weihana said:

    Besides, what is the reason for the delay in getting media to foreign markets like ours? Do they actually make more money? I would tend to think not since the delay does encourage people to downloaded TV episodes from the internet thus they miss out on the opportunity to advertise to those viewers.

    ——————————–

    The delay was originally framed around protecting the distribution of new movies. Film prints were expensive to produce so the studios used staggered global releases. The delay was meant to give NZ theater operators the chance to screen new films before DVDs of the film could be purchased or rented.

    Of course movie distribution is going digital now. Which means that soon there will no longer be a need to shuffle film prints around the world.

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  16. Weihana (4,583 comments) says:

    # bhudson (1,328) Says:
    January 10th, 2012 at 4:24 pm

    @Richard29

    No I wouldn’t – but the analogy doesn’t stand up. If I could walk up to somebody’s car and make an identical carbon copy for my own use while leaving them their car – well I’d find that pretty appealing

    Then you would have stolen their intellectual property (and that of the many suppliers of components that go to make up the car.) And, essentially, that is the point for software or other electronic content such as downloading movies and TV content – copying it is still taking the property of the owner.

    I think it would be worth taking a step backwards and asking what is the moral justification for that property right. Why does society bother with making an effort to employ police, courts, write legislation etc. etc. to protect the “intellectual property” of people? Indeed the supply of such intangible resources is potentially infinite. For instance the only limit to how much times I can copy a song is the space on my hard drive. So immediately we see a clear distinction between intellectual property and real property in that I can copy intellectual property without removing anything tangible from the owner.

    However, that is not to say nothing is removed since I remove the opportunity for the owner to profit from their creation. And if they can’t profit from their creation will they be encouraged to create it in the first place? So this for me is the moral basis for copyright protection: it incentivizes the creation of more property.

    But despite the rapid increase in file sharing it does not appear to me that the incentive to create such property has been diminished or taken away, rather only certain revenue streams have been taken away and usually those revenue streams are more important to the distribution company rather than the actual creator of the artistic work.

    Therefore I see no reason to make copyright enforcement stronger since the supposed negative consequences appear not to exist. And why should they? Have we stopped going to the movies? Have we stopped going to concerts? No we haven’t so the artists continue to prosper.

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  17. bhudson (4,740 comments) says:

    Weihana,

    The taking of the property without paying hurts both the distribution company and the creator – both are losing revenue (royalties in the case of the artist.)

    Irrespective of whether or not the person downloading the move still goes to see it at a theatre, the unauthorised downloading still amounts to theft of the property.

    As a society we see fit to have and enforce property rights. Whether that property is physical or electronic makes no difference (other than perhaps making it easier to take in the first place.)

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  18. gump (1,661 comments) says:

    bhudson said:

    Irrespective of whether or not the person downloading the move still goes to see it at a theatre, the unauthorised downloading still amounts to theft of the property.

    ————————-

    Actually it isn’t theft, it is copyright infringement.

    Theft is defined and criminalised by the Crimes Act. Copyright infringement is defined and criminalised by the Copyright Act.

    The content industry likes to use the word theft because it sounds more dramatic. But it isn’t theft at all.

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  19. Graeme Edgeler (3,289 comments) says:

    Besides, what is the reason for the delay in getting media to foreign markets like ours? Do they actually make more money? I would tend to think not since the delay does encourage people to downloaded TV episodes from the internet thus they miss out on the opportunity to advertise to those viewers.

    Lots of reasons:

    1. Some US television shows are very erratic, they can have new episodes for a few weeks, then a repeat or two, then back to new episodes for a few weeks. New Zealand viewers aren’t used to that, so our networks assume it would annoy them, and hold back until they’ve got enough for at least a half-season run.

    2. There are three major New Zealand channels, which run their own stuff, and overseas material as well. They haven’t got space to air everything in the timeslot that best suits advertising revenue, so some stuff has to wait. Some stuff also waits because what rates well (and sells well to advertisers) in mid-Winter US wouldn’t do as well in min-Summer NZ.

    3. Most people don’t actually download.

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  20. Kimble (4,443 comments) says:

    That would depend on how much it cost to get hold of the technology.

    Lets say your phone could do it if you installed some free app.

    And how difficult it might be to escape the long arm of the law.

    Why couldnt someone charge you a fee for looking at their freshly painted house, from the road outside? It is their property, and if they put a pretty design on it (even if they didnt actually) it would be their intellectual property.

    What would you think of a law that enforced that persons right to charge you for using your eyeballs? Did you steal?

    It is becoming like that with entertainment. The access is so easy (and becoming easier and easier, picture a free to air TV channel that you werent allowed to watch) that eventually it would impose an unfair cost on people demanding that they do not use it.

    This is where we are heading.

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  21. ben (2,384 comments) says:

    Such a law change would probably do more to reduce infringing file-sharing of TV shows, than any amount of punitive measures

    It isn’t clear that is the essential issue here, since the deciders of rollout strategy, copyright holders and their clients, also bear the cost of piracy which is a function of their strategy.

    The essential question is whether efficiency (i.e. welfare) is raised by having governments do copyright holders’ bidding after the first sale, which is a very difficult question to think about.

    [Edit: actually DPF plainly understands this so I will just stop talking now]

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  22. adze (2,129 comments) says:

    From what I can see (IANAL), one problem with IP rights in the way they are enforced is that in the event of an IP dispute, the richer of the two parties nearly always has the advantage. If some freelance programmer develops a killer app that a rich corporation wants, the corporation can simply say “sell us the rights to the app or we’ll reverse engineer it and you’ll get nothing, because we know you can’t afford to litigate”. Likewise, a rich IP rights holder can bankrupt an alleged infringer (make an example of them) even if the allegation lacks merit.

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  23. annie (539 comments) says:

    I’m happy to pay for timely access to books, movies, and other copyrighted material. A decent VPN is currently the way to go.

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  24. bhudson (4,740 comments) says:

    gump,

    Fair point.

    (But I think it does make more sense in general conversation than something along the lines of “depriving the owner of benefit they might be otherwise be entitled to through the possession and/or use of the “)

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  25. slijmbal (1,236 comments) says:

    I thought the delay for programs was caused by the current deliverer of $ value (the TV stations) to the copyright holder wanting to determine when we view programs for their own purposes e.g. filling up seasons most effectively. The problem is that should the programs become available electronically based on immediate availability then the $ that the likes of HBO can charge TVNZ would potentially drop significantly. I have no idea of the $ cost to TVNZ et al for buying programs but my guess is that they would not want to make them available directly until they could charge similar.

    Not sure about the legitimacy of making someone sell you something though. The TV companies may be seen as doing cartel like behaviour by deliberately forcing channels I suppose if you squint at it sideways.

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  26. Weihana (4,583 comments) says:

    # bhudson (1,330) Says:
    January 10th, 2012 at 5:21 pm

    Weihana,

    The taking of the property without paying hurts both the distribution company and the creator – both are losing revenue (royalties in the case of the artist.)

    Similarly taxation hurts the worker and the businessman and the investor. But we permit such “theft” for the social benefits that ensue. Arguably the illegitimate downloading of copyrighted material constitutes a social benefit since the content has value and is able to be consumed without cost benefiting those who download it. If the cost to the creator is not such that it discourages creativity in the first instance then what does society have to gain by creating an enforcement regime that permits them to collect even more money?


    As a society we see fit to have and enforce property rights. Whether that property is physical or electronic makes no difference (other than perhaps making it easier to take in the first place.)

    But it does make a difference. Intellectual property generally has a time limit and for good reason. The point is society elects to protect property rights primarily for its own benefit, it does not protect those rights just for the sake of the individual. If the extent to which it protects such rights goes beyond what is required to maximize societies interests then what reason is there to offer further protection? Thus we “steal” income to fund government and other social services and likewise the current copyright enforcement regime can be justified on the basis that it establishes a reasonable balance between the interests of society and those of producers.

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  27. bhudson (4,740 comments) says:

    Weihana,

    It is spurious to try to link taxation to theft (or copyright infringement in this instance.)

    To the extent that you do nonetheless, it can be argued that people receive benefit in return for their taxes: law and order, education, health care, economic development and trade agreements, welfare and more.

    If people are downloading the artist’s material, the artist or copyright holder are receiving nothing in return [they don’t need that individual for dissemination of the material – they have the likes of radio, TV, video, DVD for that – all channels they can also receive a commercial return from.]

    Having engaged in that briefly, it is still spurious in my view to try to link taxation and copyright infringement.

    …illegitimate downloading of copyrighted material constitutes a social benefit since the content has value and is able to be consumed without cost benefiting those who download it.

    That is not a social benefit, it is an individual benefit to the downloader. And a cost to the copyright holder and artist in lost revenue.

    A disincentive to creativity is not the only grounds for enforcement of the artist’s/copyright holder’s rights. The deprivation to them of the revenue they would otherwise have received from the sale is sufficient. The content in question has value (by your own admission in the quote above) and the artist/copyright owner has/have a right to compensation for the use of the material which has that value.

    If the extent to which it protects such rights goes beyond what is required to maximize societies interests then what reason is there to offer further protection?

    To the extent that you might want to accept that proposition, it would apply equally to physical property – that society upholds property rights for physical property also to the extent that it benefits society and not just the individual.

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  28. gazzmaniac (2,307 comments) says:

    Instead of the NZ government asking the US to change the law, why not suggest that we change NZ law to make it legal to download a program that has aired overseas after say 10 days? That would allow the local TV stations enough time to air it here if they want to. You could also extend it to music saying that if the record company doesn’t allow it to be sold in NZ then it is fair game. The US might not like it, but they’re not exactly going to give us a free trade agreement any time soon.

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  29. PaulP (155 comments) says:

    Can someone tell me does having apple tv with a USA iTunes account so you can watch USA shows in NZ shortly after they show in the US but well before here breach the copyright laws in any way? Paying in full on the US itunes store but watching in NZ. I know it will likely breach the apple terms and conditions but what about our copyright laws?

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  30. gazzmaniac (2,307 comments) says:

    PaulP – I highly doubt it. Doing that is no different to buying a region 1 DVD overseas and playing it in NZ, which is not illegal.

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  31. Richard29 (377 comments) says:

    @bhudson
    “That is not a social benefit, it is an individual benefit to the downloader. And a cost to the copyright holder and artist in lost revenue.”

    Except that you missed out a critical condition on your statement. It should read “a cost to the copyright holder and artist in lost revenue – if the consumer would otherwise have bought the content”.

    That is a massive ‘if’ – the studios make these claims of multibillion dollar losses apparently based on the number of downloads multiplied by the profit per unit sold if I were to buy that content at full price on a CD or DVD. If I added up all the shared content I had ever seen for free according to this formula is would probably run into thousands of dollars.
    The fact is that there have been practically no infringement notices issued since the file sharing law came in, remember they have to issue three notices at $25 a pop, plus cost of appeals, if they were really losing $100’s or $1000’s per person this would be $75 well spent. The fact that they have pursued practically no infringement notices (apart from a couple of notices to kids for downloading Rihanna to try and spook their parents into policing them) indicates that even the studio don’t beleive the loss numbers they are quoting.

    The reason for this is simple. If I were not to download a movie I wanted to watch I would probably do one of 3 things:

    1) Record it for free when it came on television.
    I’m not sure what the marginal value of a single additional viewer is in the price that the studio gets from the television network but I would guess it is tiny. However large it is they are getting overcharged as I record and watch after the fact, fastforwarding through the ads, meaning they are not getting the audience for advertisers that their business model is premised on.

    2) Watch something different that is free
    We live in the media age – there is no shortage of content competing for my eyeballs. I have three sitcom series, several movies and a bunch of documentaries sat recorded and unwatched on my DVD recorder (see 1 above). If content is not available online (such as niche interest films or documentaries) or is available in crap quality (such as new release films before a DVD rip becomes available) then I won’t watch it.

    3) Rent it from a video store on Tuesday
    If I really ran out of good free content (which has never happened yet) then I would pop into the local video store on the way home on a Tuesday and access their library at the discount price (around $2 per rental). I’m not sure what cut the studio gets of this transaction, but by definition it is less than $2, lets say (optimistically) that they make 50c cents.

    So in the best case scenario the studio might be able to make 50c per infringement from me if I were not copying content for free. That means it would take more than 150 movies or tv series before pursuing an infringement notice would make sense (more than I would watch in a year).
    But more obviously there is a massive opportunity – if they were to make high quality content available for download on a pay per view basis at say $3 per new release and $1 for library content direct from the studio then it would be far more attractive than any of the options listed above. They choose not to do this – not because the technology is not available but because as Graeme says ” Most people don’t actually download” and they make a fat margin on these people who continue to buy little discs of plastic shipped halfway around the world. Once these people start to wise up then things will change.

    With the widespread adoption of internet TV things should change because there will be a competitive advantage to the providers who get the largest libraries of content up the soonest.

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  32. bhudson (4,740 comments) says:

    @Richard29

    That is a massive ‘if’

    But it’s not. Because the only way the consumer could gain the benefit of the content legally is if it is paid for – the consumer pays for it, the broadcaster pays for it (selling subscriptions to consumers – e.g. Sky TV – and/or advertising – which also flows through to consumer spending), or the rental business pays for rental copies on the basis that they will rent the content to multiple people (and possibly multiple times to some of them, as renting the moves doesn’t entitle the consumer to copy it to then watch it free of charge.)

    If the consumer chooses not to use the content at all then they forego the benefit they would otherwise receive and the copyright holder/artists suffers no loss. There is no way for the consumer to legally gain the benefit of usage of the content unless it is paid for in some form.

    But more obviously there is a massive opportunity – if they were to make high quality content available for download on a pay per view basis at say $3 per new release and $1 for library content direct from the studio then it would be far more attractive than any of the options listed above.

    As regards opportunities for content owners to maximise markets, revenue and margins through the likes of online subscription services (such as Netflix) I don’t disagree at all. I think it is something that should be promoted and certainly something I would support and use (possibly to the detriment of my current Sky subscription – on sufficient scale that would provide a motivation for them to revise their current subscription model.)

    But I think that is a commercial decision for those content owners to make – it is not the role of governments to force them. I think it is absolutely appropriate to remove legislation or regulations that are barriers to such services, but not to legislate to coerce those content owners to have to use them.

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  33. gazzmaniac (2,307 comments) says:

    I still think that if copyright owners don’t make their content available in your jurisdiction, it should be fair game.

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  34. bhudson (4,740 comments) says:

    gazzmaniac,

    As the owners of the copyright, what obligation do they have to make it available to any jurisdiction?

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  35. Weihana (4,583 comments) says:

    bhudson (1,334) Says:
    January 10th, 2012 at 7:35 pm

    It is spurious to try to link taxation to theft (or copyright infringement in this instance.)

    To the extent that you do nonetheless, it can be argued that people receive benefit in return for their taxes: law and order, education, health care, economic development and trade agreements, welfare and more.

    [violating copyright] is not a social benefit, it is an individual benefit to the downloader. And a cost to the copyright holder and artist in lost revenue.

    Welfare is an individual benefit to the recipient who receives money forcibly taken from the original owner. That benefit is a cost to the person who is taxed.

    In principle there is no difference to the present situation and thus copyright violation could be considered a social benefit. The argument could be that the benefit from people having access to free content outweighs the individual benefit for a copyright holder profiting from their content in excess of what is necessary to motivate such creativity in the first instance.


    A disincentive to creativity is not the only grounds for enforcement of the artist’s/copyright holder’s rights. The deprivation to them of the revenue they would otherwise have received from the sale is sufficient. The content in question has value (by your own admission in the quote above) and the artist/copyright owner has/have a right to compensation for the use of the material which has that value.

    I do not agree that this right is independent of its value to society. Society, like individuals, acts for its own interests because it is in its nature to do so. Therefore in order to protect the so-called “rights” of individuals it must have reason to do so, reason which appeals to its nature, i.e. its self-interest. The reason society has an interest in upholding such rights is because it is necessary to engender a sense of fairness and motivate the creation of valued artistic works in the first place.

    And yes I agree this principle can be extended to real property.

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  36. Brabus (31 comments) says:

    There is also the question of who is the copyright holders. In Aus the courts decided that it wasn’t the distribution companies themselves and therefore as they weren’t the holders they couldn’t successfilly bring a case of copyright infringement.

    http://www.zdnet.com.au/iinet-wins-copyright-court-case-339300820.htm

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  37. Weihana (4,583 comments) says:

    bhudson,

    I think you are missing Richard29’s point that people download far in excess of what they would otherwise pay for. I can easily download every episode of Spongebob Square Pants at no cost. I would not pay 100+ dollars to purchase it on DVD legally even if downloading it was impossible. People consume more when the price goes down, and when the price is nothing then obviously people may download material they never even intend on watching.

    This is why it is false and misleading for the distributors to estimate their losses based on downloads. The actual loss is in reality only a small fraction of what is actually downloaded because people would not otherwise pay for it even if they had to.

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  38. bhudson (4,740 comments) says:

    Weihana,

    Welfare is an individual benefit to the recipient who receives money forcibly taken from the original owner. That benefit is a cost to the person who is taxed.

    Welfare is but one of a list of things that I noted that taxation pays for. The taxpayer who helped contribute through their taxes also receives a benefit in that they can also be a recipient of that welfare if required. The same cannot be said for copyright infringement (I can’t see the copyright owner recognising a benefit if the downloader invites them around to watch their own movie.)

    So, using welfare as the example as you did, there is a clear difference between taxation for welfare and copyright infringement – that those taxed can also receive the welfare benefit. They are not the same in principle.

    The argument could be that the benefit from people having access to free content outweighs the individual benefit for a copyright holder profiting from their content in excess of what is necessary to motivate such creativity in the first instance.

    If you were postulating a Marxist position, sure that argument could be made. But we do not live in a Marxist society and we do not limit the returns people/business can make to that which is the difference between them engaging or not engaging in that business.

    To that point, copyright is protected under the Copyright Act and the question of whether or not the infringement is enough to have the owner cease their business does not form the basis of whether or not there is an infringement, or whether or not that infringement can be penalised.

    The reason society has an interest in upholding such rights is because it is necessary to engender a sense of fairness and motivate the creation of valued artistic works in the first place.

    I disagree. I believe it has more to do with copyright material being the property of the owner and our society values property rights (to the degree that they protected under legislation – some would argue we don’t protect them enough.) I believe that society protects property is more of a motivator for people to create works, than some sense that society is fair and our legislation will reflect that (which is not guaranteed.)

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  39. bhudson (4,740 comments) says:

    Weihana,

    I think you are missing Richard29′s point that people download far in excess of what they would otherwise pay for. I can easily download every episode of Spongebob Square Pants at no cost.

    Not at all Weihana.

    Firstly, the copying [downloading] is an infringement – you don’t need to view the material.

    Secondly, by having taken a copy you are then free to use that material at any time. The fact that you haven’t viewed all of the episodes of Spongebob at a specific point in time doesn’t prevent you from doing so at some point. (The same applies to material they might download with no desire to use at all – once they have it, they can use it at any point in the future with no recompense to the copyright owner. They can receive benefit from it if they so choose at any time and the owner has sustained loss.)

    Even more to the point that Richard29 raised with his ‘if’ however is that his examples to illustrate the alternatives showed (in 2 out of 3 cases) that the desire to consume the content was there. Those 2 examples point to accessing the material; merely through different (legal) means.

    The 2nd example he uses – watching alternative, free, content has been covered previously – the consumer forgoes the benefit of using the material and the owner suffers no loss.

    On that basis it is absolutely valid to claim that if the material were obtained illegally then the owner has been deprived of revenue (through one of a number of sources.)

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  40. gazzmaniac (2,307 comments) says:

    As the owners of the copyright, what obligation do they have to make it available to any jurisdiction?

    None whatsoever. However, if a copyright holder chooses to make it unavailable for consumers in New Zealand then they should waive their copyright in that market, since they obviously don’t want to make money out of that market anyway.
    Copyright is something that is created by governments, so they should be able to set the rules around it.

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  41. bhudson (4,740 comments) says:

    gazzmaniac,

    …if a copyright holder chooses to make it unavailable for consumers in New Zealand then they should waive their copyright in that market…

    Why? It is their property and we agree they are not obliged to make it available. Therefore there are no grounds to demand that they should allow it to be taken for nothing.

    I agree that governments should be able to set rules. They have and do for all property rights (including copyright.) They have to do so in line with other obligations under international agreements, trade agreements and general relationships with other countries. We agree to protect copyright in NZ (copyright held by our own citizens and that from offshore.) While we could of course change that, being a sovereign nation, I suggest that the repercussions of doing so will prevent that from happening. We certainly could not survive, let alone prosper, as a pariah in the international community.

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  42. gazzmaniac (2,307 comments) says:

    bhudson – if they don’t want their easy to duplicate and distribute at minimal cost property to be taken for nothing then they should offer it for sale at a reasonable price. If they don’t offer it for sale they shouldn’t complain when people distribute it themselves at minimum cost. It is no different to buying a magazine, scanning it and emailing that scanned copy to someone where the magazine is not available. While that is probably also technically illegal, nobody would tell someone that they aren’t allowed to do that – it is fair game.
    In short, copyright should only be available to a work that is for sale in that country.

    I have a couple of other problems with the current digital means of distribution – it should be cheaper than buying physical medium from a shop or from an online retailer, since there is no physical medium to transport. Pricing is entirely up to the seller, but again they shouldn’t be surprised when nobody buys from them if they’re asking $30 for you to download a video and it’s available at The Warehouse or Amazon for $19.95. While that’s not so much of a problem for new release videos, it is a problem for older movies.

    Ignoring the probable fallout in US relations, the main effect of changing the law to that would be that more and more products are for sale immediately to New Zealand consumers. New Zealand would be the place that gets everything first, instead of last.

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  43. Weihana (4,583 comments) says:

    bhudson (1,338) Says:
    January 11th, 2012 at 1:53 pm


    Welfare is but one of a list of things that I noted that taxation pays for. The taxpayer who helped contribute through their taxes also receives a benefit in that they can also be a recipient of that welfare if required. The same cannot be said for copyright infringement (I can’t see the copyright owner recognising a benefit if the downloader invites them around to watch their own movie.)

    But they could benefit from viewing the content of others for free. Content creators and the general public are not mutually exclusive groups of people just as an income earner paying tax may one day also be a welfare recipient. In fact, it is more unlikely that an income earner will be a beneficiary whereas there are always other content creators.

    Note the welfare that a person receives is not the same as the tax they paid to provide someone else with welfare. When you pay tax it doesn’t go into a safe in case you need it. It goes to pay for someone else and the majority of the time people will not receive anything back for contributing to the welfare system.


    If you were postulating a Marxist position, sure that argument could be made. But we do not live in a Marxist society and we do not limit the returns people/business can make to that which is the difference between them engaging or not engaging in that business.

    We live in a democratic society where we can choose to implement whatever laws we want. Moreover, you misrepresent Marxism. Marxism is the idea that the state should own the means of production. That is not what I am advocating. I am merely advocating a limit on the rights afforded to property owners.


    To that point, copyright is protected under the Copyright Act and the question of whether or not the infringement is enough to have the owner cease their business does not form the basis of whether or not there is an infringement, or whether or not that infringement can be penalised.

    I know it is protected under the Copyright Act. I’m not arguing with you over what the law is, I’m arguing the ethical foundation of such laws and whether society has an interest in maintaining them or adjusting them.


    I believe that society protects property is more of a motivator for people to create works, than some sense that society is fair and our legislation will reflect that (which is not guaranteed.)

    You are oversimplifying the question. The question is not whether society should protect property rights, the question is what specific form those rights should take and to what degree those supposed rights should be upheld. Property rights are not absolute and this is true for real property as much as it is for intellectual property. Our rights to real property are often heavily limited for social reasons such as welfare etc.

    So a similar argument can be made for intellectual property. Indeed such rights are already limited through fair use, time limits etc. While illegal file sharing is not lawful or legitimate, it is nevertheless an effective limit on those property rights and as far as I can see they do not effect significant damage to artists whilst constituting a significant benefit for those who have access to vast libraries of content illegally.

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  44. gazzmaniac (2,307 comments) says:

    OK put it another way.
    A manufacturer makes a high spec amplifier and it sells for $2000 to people who live in Europe. An old guy in Australia wants to buy one, calls up the manufacturer and resellers in Europe and is told that it is not possible to send him one since he lives outside Europe. A cluey young guy in Europe gets one, pulls it apart and discovers that it has $250 worth of easily sourced parts, and that it’s easy to make them up . He records the circuit diagram and after making a copy and testing (ie he has reverse engineered it) it he puts the circuit diagram on the internet for all to see.
    Pretty soon, every young guy in Australia who can swing a soldering iron makes his own one up, identical in every way to the one manufactured by the company that designs it. Even though they still have to pay $250 for parts and it takes half a day to make, it’s still worth it for such a high quality audio machine.

    Has anyone stolen from the manufacturer? No. Has anyone made money off this? No, apart form the local electronics retailer who has probably made a killing from all the extra business, but of course it’s nothing to do with them, they’re only supplying commonly available parts and it’s not for them to ask what for. The manufacturer has lost nothing since they weren’t selling it in Australia anyway. We can assume for the purpose of the example that nobody starts making them for sale.
    Is making one of these products illegal? Probably – they are copying a design that no doubt took a lot of time to design. Is it immoral? No.
    Copying music is no different. It is still copying a work that is not for sale in that country, and if it was for sale would probably be bought by a portion of the population who copy it anyway. It’s just that the barrier to doing so is so much less.

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  45. Weihana (4,583 comments) says:

    # bhudson (1,338) Says:
    January 11th, 2012 at 2:08 pm


    Firstly, the copying [downloading] is an infringement – you don’t need to view the material.

    I agree it is, under the law at present, an infringement and that the material is not a “need”. It is a want.


    Secondly, by having taken a copy you are then free to use that material at any time. The fact that you haven’t viewed all of the episodes of Spongebob at a specific point in time doesn’t prevent you from doing so at some point. (The same applies to material they might download with no desire to use at all – once they have it, they can use it at any point in the future with no recompense to the copyright owner. They can receive benefit from it if they so choose at any time and the owner has sustained loss.)

    I disagree. I recognize that the law takes your position that any illegitimate download constitutes a loss to the content creator and therefore the rights holder can take civil action to be compensated.

    However, this does not mean that they have suffered a loss in reality. I propose that in order for them to suffer a loss in reality it must be the case that if obtaining the material illegitimately were impossible that the consumer would still elect to purchase the item at the retail price listed. This is simply not always the case. As the price of something decreases, consumption goes up beyond what would be consumed if the price remained high. Therefore it is false to claim that every download constitutes a missed sale.

    In reality a download constitutes a legal infringement and there is only the possibility that the rights holder has suffered an actual loss of sale that would have otherwise been realized had the downloading not been possible.


    Even more to the point that Richard29 raised with his ‘if’ however is that his examples to illustrate the alternatives showed (in 2 out of 3 cases) that the desire to consume the content was there. Those 2 examples point to accessing the material; merely through different (legal) means.

    The desire to consume something is not independent of its price. This is the central point which your argument doesn’t account for.

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  46. Weihana (4,583 comments) says:

    bhudson,


    We certainly could not survive, let alone prosper, as a pariah in the international community.

    You mean like China? :)

    But I agree you do have a point. We are a small nation with much less weight to throw around as compared with China which does a very poor job of enforcing copyright.

    However, all I’m suggesting is that we keep the copyright enforcement regime we had before the three strikes system was implemented. Or alternatively that we keep the three strikes system but do not make further changes that the USA may demand of us.

    The question is what changes does the US want exactly and do those changes outweigh the benefits of a free trade deal and even if we rejected such changes would a free trade deal be completely off the table? All I’m saying is that the NZ public benefits from downloading american content for free and that this should be taken into account when negotiating our trade interests with the US. Even more important is the integrity of our system. The three strikes system threatens to undermine the integrity of our system by assuming people are guilty upon being accused. We shouldn’t throw away due process for our citizens just because the USA waves some cash in our face.

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  47. bhudson (4,740 comments) says:

    Weihana,

    But they could benefit from viewing the content of others for free.

    Then they would be equally guilty of an illegal act and subject to the same penalties. (While still retaining their rights with respect to their own material.) The copyright owner undertaking the same illegal act does not in any way legitimise the act.

    Note the welfare that a person receives is not the same as the tax they paid to provide someone else with welfare.

    Correct. The amount of that person’s tax taken to fund the welfare system is likely to be a great deal less than what they would receive if they became eligible for welfare (given that their tax is also funding defence, health, education, economic development, trade and almost every other government tax-funded initiative. Without doubt that system can work on the basis that not everyone who contributes becomes a recipient. Nonetheless, each individual can, if necessary, and that protection provides benefit to them for the tax taken.)

    While illegal file sharing is not lawful or legitimate, it is nevertheless an effective limit on those property rights

    But it is not a limit at all. The accessibility and ease of obtaining the content through illegal file sharing does not in anyway legitimise the act. It does nothing to affect the legal standing of the copyright; it may simply make it easier to break the law.

    To use an analogy, the fact we don’t use speed limiters on cars and it is extremely easy to break the speed limit, does nothing to change the fact that it is illegal to exceed the limit and, if caught, you are subject to penalty. [Incidentally the recent amendment IMHO has far less to do with catching the perpetrator than it does with respect to providing a means to do something about it if they are caught – very much like speeding in fact.]

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  48. bhudson (4,740 comments) says:

    Weihana,

    However, this does not mean that they have suffered a loss in reality.

    It can be argued that the actual loss is not sustained until the material is consumed (viewed, used, played, etc), however the ability to consume it is gained upon obtaining it (illegally in this instance.) Given the absence of any means to determine if and when the illegally obtained content is consumed, the only reasonable accounting can be at the point where that consumption became possible (at the time of downloading given that is the most common example used.)

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  49. bhudson (4,740 comments) says:

    Weihana,

    All I’m saying is that the NZ public benefits from downloading american content for free and that this should be taken into account when negotiating our trade interests with the US.

    Yes we do (illegally) and yes I’m sure the US are taking that into account in negotiations.

    I agree that legislative barriers that prevent or make it difficult for copyright holders to make material readily available to us at their choice should be removed. Including that in trade negotiations is a good idea. I do not agree that we should change legislation or regulation to compel those copyright holders to make their material available to us – that is a commercial decision for them to make, as are the terms and conditions they make it available under.

    Don’t get me wrong. I fully support the idea of readily available content (e.g. the likes of a Netflix available in NZ.) I do not agree with legislation or regulation to force copyright owners to do so.

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  50. bhudson (4,740 comments) says:

    gazzmaniac,

    Has anyone stolen from the manufacturer?

    Yes. The guy stole (/infringed the rights of the manufacturer) the intellectual property of the manufacturer through their reverse engineering of the circuit board.

    The manufacturer has lost nothing since they weren’t selling it in Australia anyway.

    It is not for us (in a real world example) to speculate on the reasons why that is. It could be the copyright holder hasn’t yet been able to negotiate an acceptable commercial agreement with a distributor or resellers. Perhaps the distributors refuse to hold stock (a financial investment), which would significantly raise the cost if each purchase (shipment) from the manufacturer’s perspective. It would also impact their ability to offer quality after-sales services. Perhaps the government has a tariff on importing that product which makes it unaffordable (not all products are tariff free yet – not even here in NZ as I understand it.)

    So, yes there was an infringement of rights involved in the creation of the first and every other copy. Whether or not everyone who made use of the posted diagram has committed a crime I cannot say. But the diagram (and therefore their ability to replicate the amplifier) came about as the result of an illegal act.

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  51. gazzmaniac (2,307 comments) says:

    bhudson – while I appreciate that selling something through a local distributer (ie middle man) can be a good move for some companies, others have found that selling worldwide from a central distributor is also a very cost effective option. So the amp manufacturer could sell to consumers directly in countries where the machine will work (ie it must have 240v etc) much like itunes or Sony could sell directly to the public in New Zealand through the web but choose to block some content.

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  52. Weihana (4,583 comments) says:

    # bhudson (1,343) Says:
    January 11th, 2012 at 5:56 pm

    Weihana,

    But they could benefit from viewing the content of others for free.

    Then they would be equally guilty of an illegal act and subject to the same penalties. (While still retaining their rights with respect to their own material.) The copyright owner undertaking the same illegal act does not in any way legitimise the act.

    Your argument appears to be that because it is illegal it is not legitimate. That’s fair enough, but I’m questioning whether such illegal acts nevertheless constitute a social benefit, not whether they are “legitimate” according to law.


    While illegal file sharing is not lawful or legitimate, it is nevertheless an effective limit on those property rights

    But it is not a limit at all. The accessibility and ease of obtaining the content through illegal file sharing does not in anyway legitimise the act. It does nothing to affect the legal standing of the copyright; it may simply make it easier to break the law.

    I just acknowledged it wasn’t legitimate (i.e. lawful) so I’m not sure why you are trying to convince me it is unlawful and therefore illegitimate. The point is that the illegal downloading and difficulty of prosecuting all those who do so constitutes an effective limit on the owner’s property rights. It’s the same as if people stole real property and couldn’t effectively be prosecuted. In such cases one’s property rights would be limited by such action.

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  53. Weihana (4,583 comments) says:

    bhudson,


    It can be argued that the actual loss is not sustained until the material is consumed (viewed, used, played, etc)

    No I disagree.

    It is only a loss if the consumer would have otherwise purchased the material at the retail price if obtaining it illegitimately was not an option. Consuming something when the price is $0 (e.g. downloading) does not mean it would be consumed if the price was more than that (e.g. purchasing it at the store).

    To argue that a loss has been sustained simply because something has been consumed at no cost to the consumer is to imagine that if they hadn’t been able to consume it at no cost then they would have still consumed it at the retail price. This is absurd of course because it presumes that people’s decisions are not influenced by price. People consume more when the price is low. If they were forced to consume at the retail price, as required by law, they would consume less.

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  54. Weihana (4,583 comments) says:

    bhudson,

    That is to say that if I waved a magic wand and made downloading illegal material impossible, all those lost downloads would not turn into profit for the record companies. Only a fraction of the people who downloaded would still be motivated to purchase the material at the retail price.

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  55. bhudson (4,740 comments) says:

    Weihana,

    The point is that the illegal downloading and difficulty of prosecuting all those who do so constitutes an effective limit on the owner’s property rights.

    That is simply incorrect. It does not limit the rights at all. It may make it easier for people to break the law and even get away with it, but it does absolutely nothing to compromise the rights. You are trying to conflate the right being determined by an ability to stop people infringing it. That is simply not correct – the rights exist irrespective of whether or not people heed them.

    To use physical property as an example, as you do, your reasoning (even if not your intention) is that my property rights to my TV are limited because I can’t actually stop someone smashing a window while I’m not there and taking it. That is simply not the case – my right to that property remains. The challenges of preventing someone taking it in the first place, or finding them and prosecuting them are distinctly different to the property right.

    The ease of people being able to access copyright illegally does nothing to compromise the rights of the copyright holders.

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  56. bhudson (4,740 comments) says:

    Weihana,

    To argue that a loss has been sustained simply because something has been consumed at no cost to the consumer is to imagine that if they hadn’t been able to consume it at no cost then they would have still consumed it at the retail price.

    No it is not to imagine that at all. It is to acknowledge that the sale and purchase is a process whereby the seller sets a price and the buyer chooses to purchase or not. The buyer not liking the price does not invalidate the seller’s right to set the price, nor does it permit the buyer to then acquire it illegally; they simply agree not to transact. The buyer foregoes the benefit of consumption and the seller foregoes the benefit of revenue.

    Reasoning that goes along the lines of “If I wouldn’t buy this from you at your price and so I take it illegally instead, then you have sustained no loss” is patently wrong.

    That is to say that if I waved a magic wand and made downloading illegal material impossible, all those lost downloads would not turn into profit for the record companies. Only a fraction of the people who downloaded would still be motivated to purchase the material at the retail price.

    Whether they all turn into purchases or not is not the valid point underpinning this. What is valid is that the consumer would only be able to consume the content if the copyright holder was compensated in some form (e.g. direct purchase, TV broadcast, rental). Their choice would be to consume or not (to pay – in some form – or to forego benefit.) The copyright holder would be compensated in every case if the choice was to consume the content.

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  57. gazzmaniac (2,307 comments) says:

    OK,
    If my next door neighbour buys a DVD and tells me that I can borrow it whenever I like, it is not illegal (or at least it shouldn’t be).
    For convenience I decide to copy the DVD to my thumb drive so I can ensure that I don’t lose or damage the original DVD (which is a pretty good thing to do with your own DVDs by the way). If I hadn’t made the copy, I wouldn’t have bought another copy of the DVD since I could just borrow it from my neighbour. Yes, technically an illegal act was committed, but nobody lost and the only gain was to prevent loss or damage of the original media.
    There should be no problem with this in law – it’s no different to borrowing a text book from your neighbour and photocopying the relevant pages to reduce wear in the original copy (and I know that you’re only allowed to copy 40 pages or 10% of the book).

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  58. bhudson (4,740 comments) says:

    gazzmaniac,

    If I hadn’t made the copy, I wouldn’t have bought another copy of the DVD since I could just borrow it from my neighbour.

    (Ignoring for a moment whether or not the lending of the DVD is legal)…

    The important part of your statement is that, with the physical DVD, you can only consume the content when you have the physical media. Unless you are spending time together, you cannot watch it when your neighbour has the DVD and vice versa.

    That fundamentally changed when you took the copy – you are both now able to consume the same content, paid for only once, at the same time [irrespective of whether or not you do, you have the ability to.] The copyright holder has been deprived of the revenue they would otherwise have received for you to have the benefit of being able to view the content at your leisure (as opposed to when it is convenient with your neighbour.)

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  59. Weihana (4,583 comments) says:

    bhudson,


    The ease of people being able to access copyright illegally does nothing to compromise the rights of the copyright holders.

    I recognize what you are saying which is why I said it constitutes an effective limit on those rights as opposed to an intended limit. You can talk about rights existing even when breached, but in practical terms this only has meaning if the law provides an adequate remedy. If the law is inadequate then the rights of the property owners are effetively limited. Which is of course why the US wants us to make copyright protection even stronger.

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  60. Weihana (4,583 comments) says:

    bhudson,


    Whether they all turn into purchases or not is not the valid point underpinning this.

    It is a valid point because the argument often put forth by the record companies is that illegal downloading threatens the industry and therefore threatens to destroy that which produces the things people want to consume. If they don’t all turn into purchases then the magnitude of the harm they are claiming is false.


    The copyright holder would be compensated in every case if the choice was to consume the content.

    But that choice is dependent upon the price whereas the record companies claim that every download implies that such a choice would be made. That is the false logic being employed by the record companies.

    The issue is how much harm does downloading do to the recording industry. You may look at it purely from the premise that they have property rights which should be upheld. But simply arguing that people have rights is not really going to go anywhere unless the practical ramifications of those rights are considered.

    “Rights” are about protecting the mutual interests of people. They don’t exist in any other context. If content creators expect society to care about their “rights” then they must inevitably appeal to our mutual self interest. They have attempted to do this by arguing that file sharing threatens the very survival of the industry. But this argument, as Richard29 initially pointed out, is based on a false premise.

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  61. bhudson (4,740 comments) says:

    Weihana,

    Given the arguments that some use around this area – particularly arguments made in opposition to the recent amendment – it is important to be accurate, even if it appears somewhat semantic.

    The ease of accessing the content does not affect the rights, nor does it make the remedies any less adequate. It may make detecting and apprehending the perpetrator difficult, but it does not limit the remedies set out under the Act or the rights of the copyright holder if and when the perpetrator is caught.

    It is the detection and apprehension which would seem to be the challenge. Clearly, in the case of peer-to-peer file sharing, the copyright holders believe they have a means of detecting downloads and the amendment has a process for ‘apprehension’ through the infringement notices.

    Given that the ease of illicit access does not undermine their rights, whether or not the copyright holders are able to detect and apprehend all those who infringe does not impact their right to seek remedy against those they do catch.

    [Again, the analogy to speeding could apply; the police may only catch a fraction of those who speed, but the law and penalties can still be applied to those that are – the fact that many can and do get away with it in no way undermines the offense and the action that can be taken against those caught.]

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  62. bhudson (4,740 comments) says:

    Weihana,

    If they don’t all turn into purchases then the magnitude of the harm they are claiming is false.

    The reverse charge applies – that the act of copyright infringement removes the ability to prove the argument. Once the person has the content in their possession they can no longer prove that they wouldn’t otherwise have paid for it at some point in time.

    The only way the claim about not purchasing can hold true is if people don’t access the content illegally and don’t purchase it. Once they get it illegally it they no longer have any need to purchase it to have or to consume it – it is no longer a matter of making a choice between purchasing or not using. The proposition can no longer can be proved to be true.

    And it is the act of infringement that breaks the proposition, not the act of the copyright holder. The perpetrator is responsible for breaking their ability to prove the point. They also then have the benefit of being able to consume the material at their pleasure (as well as the benefit of consumption.)

    It is not unreasonable, therefore, for the copyright holder to claim lost revenue.

    Or put another way, if people do not want copyright holders to assess each illegal access of their material as lost revenue then they should not access it illegally.

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  63. gazzmaniac (2,307 comments) says:

    (Ignoring for a moment whether or not the lending of the DVD is legal)…

    Why on earth would it not be legal?

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  64. bhudson (4,740 comments) says:

    gazzmaniac,

    Why on earth would it not be legal?

    I am not saying that it is or isn’t. I haven’t researched the terms and conditions on the DVD (which, presumably, could in fact be different between copyright holders and DVDs.)

    I imagine that copyright holders could stipulate just that – commercial software companies can and do -> their license agreements can be be solely with the legal entity they contract with and not usable, transferable or assignable to anyone else [generally, unless the software company agrees.]

    Whether or not the copyright holder in the case of that DVD are able to, or ever do, is not something I could state with any certainty. Similarly to software though, when you purchase a DVD, aside from the disc itself (worth a couple of bucks), you are purchasing a right to use, not purchasing the content itself. So it would certainly seem possible that they could stipulate such lending as a breach of the license if they chose to.

    In any case, the statement was simply to set aside something which I think is clear we could only cover the possibilities of and not necessarily the facts.

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  65. Weihana (4,583 comments) says:

    bhudson,


    The reverse charge applies – that the act of copyright infringement removes the ability to prove the argument. Once the person has the content in their possession they can no longer prove that they wouldn’t otherwise have paid for it at some point in time.

    It is not unreasonable, therefore, for the copyright holder to claim lost revenue.

    For any specific case that is true and I agree with the legal position that the rights holder is assumed to have suffered an actual loss.

    But in a general sense simple economics will suffice to show that the record company’s argument is disingenuous.

    In any case, they are fighting a losing battle. Legislation will never be able to stop people from sharing information. If laws are strengthened, then so too will people’s efforts to avoid detection. If it is virtually impossible to stop people from sharing information I find it hard to see how anyone can have a “right” to restrict such copying. Any conception of “rights” must necessarily conform to reality. Reality doesn’t conform to an individual’s conception of what they think their rights should be.

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