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The following thesis was written by Stefan Larsson, a sociology of law researcher at Lund University in Sweden.

From a Summary (via a Lund University Newspost)

What is it about copyright that doesn’t work in the digital society? Why do millions of people think it’s OK to break the law when it comes to file sharing in particular? Sociology of law researcher Stefan Larsson from Lund University believes that legal metaphors and old-fashioned mindsets contribute to the confusion and widening gaps between legislation and the prevailing norms.

Our language is made up of metaphors, even in our legal texts. Stefan Larsson has studied what consequences this has when digital phenomena, such as file sharing and downloading, are limited by descriptions intended for an analogue world.
“When legal arguments equate file sharing with theft of physical objects, it sometimes becomes problematic”, says Stefan Larsson, who doesn’t think it is possible to equate an illegal download with theft of a physical object, as has been done in the case against The Pirate Bay.

Using the compensation model employed in the case against The Pirate Bay, the total value of such a site could be calculated at over SEK 600 billion. This is almost as much as Sweden’s national budget, says Stefan Larsson. The prosecutor in the Pirate Bay case chose to pursue a smaller number of downloads and the sum of the fines therefore never reached these proportions.

In Stefan Larsson’s view, the word ‘copies’ is a hidden legal metaphor that causes problematic ideas in the digital society. For example, copyright does not take into account that a download does not result in the owner losing his or her own copy. Neither is it possible to equate number of downloads with lost income for the copyright holder, since it is likely that people download a lot more than they would purchase in a shop.

Other metaphors that are used for downloading are infringement, theft and piracy.
“The problem is that these metaphors make us equate copyright with ownership of physical property”, says Stefan Larsson.

Moreover, there are underlying mindsets which guide the whole of copyright, according to Stefan Larsson. One such mindset is the idea that creation is a process undertaken by sole geniuses and not so much in a cultural context. In Stefan Larsson’s view, this has the unfortunate consequence of making stronger copyright protection with longer duration and a higher degree of legal enforcement appear reasonable. The problem is that it is based on a misconception of how a lot of things are created, says Stefan Larsson.

“Borrowing and drawing inspiration from other artists is essential to a lot of creative activity. This is the case both online and offline.”

The full text of Mr. Larsson’s compilation thesis is available here (264 pages; PDF) ||| Additional Info

Via INFOdocket

18 COMMENTS

  1. Kind of feels like the way you have to talk to a child. You may not hit your sibling. You many not hit your sibling with your hand. You many not hit your sibling with you fist, You may not hit your sibling with a stick.

    The reality is that if something is for sale and you take it without paying that’s some kind of theft.

    I wonder if the problem is that people know they are stealing but don’t care. I don’t download without paying, but I have friends who tell me exactly that ‘yeah I know but I don’t care.’

    The question for the digital age should be “Is this theft reducing my sales?” if the answer is no, then just let it happen.

    Perry

  2. No, that’s unfortunate, and the fact that a group is a majority does not make what they are doing right.

    Digital files created by individuals or companies can be willfully designated as products intended for sale. Taking products without paying for them is wrong. Doing something wrong because you know you won’t get caught is not an acceptable reason for doing it. And this is exactly what’s happening in the digital world.

    Society is based on agreement and equitable trade of goods and services. Unilaterally deciding digital goods do not fit into that mold, and that it is permissible to act counter to society’s agreements, is not how society works. That’s how societies break down and collapse.

    Assuming copyright is wrong because it bases its arguments on physical metaphors of copies is entirely missing the point. Copyright is designed to make sure the creator of a unique product will profit from it before anyone else does, as incentive for him to create in the first place.

    Copyright rules were written with physical products in mind… naturally, since at the time of writing there was nothing but physical products. That means copyright rules must be rewritten to bring them up-to-date, but with the same intent of guaranteeing first profits to the creator.

  3. Perry, you really do not need to use this flawed analogy. You can argue that copying isn’t theft, but still wrong. Admitting that there is a difference between the two doesn’t mean that you have to approve illegal copying.

    What happens right now is that people like you will start the debate with “stealing is wrong, and copying is the same as stealing, therefore also wrong”. But since the analogy is so obviously problematic and people have heard it claimed and refuted hundreds of times already, they will instantly dismiss your argument. You lose any chance you might have had at convincing anyone.

  4. You can’t steal something if the object you ostensibly stole is still there where it always was.

    Imagine you are eating an apple. I invent a ray-gun I can point at your apple which will create a perfect copy for me eat. You still have your original apple. Sounds like a win for everybody.

    But of course the apple growers would agitate for laws banning the use of such ray-guns or outlawing the copying of apples. Maybe they would have a point. After all, we can’t have everybody eating for free. How would apple growers get rich?

    This is the situation we are at in the digital age. We have the ability to provide copies for the many without taking any copies away from the few. It could be a wondrous thing. But instead we find ourselves ensnared in a web of laws and penalties designed only to limit, control, restrict and profitize without any thought for the common good.

  5. More flawed analogies, Binko. A better one would be if someone found a way to duplicate the ray gun you worked so hard to invent and intended to sell for profit. He filled the market with his free duplicates, and you sold no guns as a result.

    Ebooks aren’t apples. They are the hard and skillful work of people who have more writing talent than most, and those people deserve to earn something for their work. Selling them short the way you do is an insult to all artists and craftsmen.

    As I said, these issues will never be solved as long as both sides are arguing based on bad analogies and contempt for the other side.

  6. Well, Steven, I’ll concede that you have a point. But, in this hypothetical example, I didn’t intend to sell my magical gun for a profit. I actually intended to donate it freely to the people of the world in order to help feed those who are starving. 🙂

    Still it would make sense that I have some protection so I can market and sell my other inventions and writings if I want to. Perhaps, 14 years or so. That seems reasonable. After this limited monopoly my ideas could return to commons from which they were all derived. This would allow me to profit from my ideas while ensuring that the common pool of knowledge is constantly enriched.

    But not for 100 years! Not for 50 years past my death. Not for the massively extended terms the copyright industry keeps pushing. This doesn’t benefit society – it only benefits wealthy rights-holders. Vast swatches of our culture are currently locked away behind the walls of lengthy copyright.

    I’d rather have no copyright at all rather than the oppressive and restrictive system we have now.

  7. Well, Binko, as the subject of ebooks is about products that entertain and-or educate… and not world hunger… my point is made. Bad analogy.

    Regarding copyright lengths, again, we’re not talking about world hunger. It makes no difference to the welfare of the world if one of my books stays out of public domain for 20 years, 50 years or 200 years. It just means people will have to pay $2.99 for a few years more for a book… hardly a world-shaking problem, I think the world can manage. This might be an issue for a new derivation of emissions-free engine, or a new safety device for a vehicle, but not for a book. Another bad analogy.

    And this industry is full to the brim with bad analogies; you can’t get past them to talk about the real problems. We’ve been experiencing a 15-year-long pie-fight over ebooks. And the only solution anyone wants to present is more pie recipies.

  8. Steven, that pie recipe comment gave me a good chuckle.

    The thing that’s bothering me here is that people who want the law changed (whether to reduce copyright to ten years, fourteen, twenty, whatever) seem to think that, rather than joining together to make a lobby group and agitate for change, the best thing for them to do is break the law and steal. That says to me that what they call rationale is more like rationalization. If they had the courage of their principles, they would do something positive about it, and going on bit-torrent to perform some petty theft because you believe that you’re the one who should decide when a hard-working writer should lose the benefits of her labour is not doing something positive.

  9. Apparently anybody who presents a perspective different from yours is just labeled as “using bad analogies” or “won’t talk about the real problems”.

    One of the real problems is people like you who think it’s great if your little books are out of the public domain for 200 years or even forever. Everything is about ownership and nothing is about the commons.

    Unfortunately that everything else is locked up for 200 years like Jazz age recordings and classic TV and photographs from the last 100 years. We have a cultural lockdown in the name of copyright.

    But it’s no surprise that most people could care less. People don’t even think in terms of culture anymore. It’s just entertainment. It’s all for sale.

  10. Actually, the only thing that’s “apparent” from this conversation is that you’ve been using bad analogies.

    “Everything is about ownership and nothing is about the commons.” Spoken like a consumer who loathes parting with a dollar. Copyright (and patent) were designed to make sure creators had a good reason to create for “the commons,” without fear of being hit on the head and having their creation taken from them and earning them nothing for their work. It’s designed to benefit both sides by making sure there’s a creation to be had. If I, as a creator, am going to put in hundreds or thousands of hours and my creative juices, just so my creation can earn me no profit… I’m not going to create. Now what do “the commons” have?

    If you can’t understand the desire of a creator to earn something for their creation, and the mutual benefit of making sure both sides get something out of a deal, there’s no point in having a conversation. It’s not about culture; it’s about fairness. You get paid for your work… it’s only right you pay me for mine.

    (By the way: That’s a good analogy.)

  11. Larsson is trying to explain the disconnect between the law as written and the perception of digital works by many, if not most, members of society. Much of the discussion here both fails to address his thesis and in that failing reinforces his point.

    BTW, in the US at least, a copyright is not property. It is merely a government granted, time limited monopoly. Moreover, it has exceptions where another person can use your work (e.g. copy portions of it) without your permission under certain circumstances.

    As Larsson points out, our metaphors are woefully lacking.

  12. Quote: ““Everything is about ownership and nothing is about the commons.” Spoken like a consumer who loathes parting with a dollar.”

    SLJ, I think you are overstating his opinion and your case. To say that copyright should have a more limited term is not to say that it should be eliminated. I am perfectly willing to buy your products (and I have), but I don’t quite see why they shouldn’t come into the commons sometime sooner than Disney Corp sees fit. Perhaps more people need to go read Spider Robinson’s _Melancholy Elephants_, which can be found on his website. Every creation is a product of the culture which came before it as well as the genius of its author.

  13. The biggest problem today with copyright is that it, like so much else, is owned by the megacorps. I would feel better about paying full price for a book where the author has been dead for 50 years if I felt that the author’s heirs were benefiting, but too often they’re not. Who owns Agatha Christie, or Rex Stout?

    My understanding is that he current life + 120 years rule was put in by the Disney corporation, to preserve Mickey Mouse. That kind of thing should be treated differently than my author-dead-for-50-years books.

  14. Well, in fairness, I may have been distracted by Binko’s referring to my work as “my little books” and suggesting I wanted them to be kept from public domain for “200 years or forever.” As far as I’m concerned, my works can become public domain when I die, and if the law decides it should be sooner, fine… I’ve said so elsewhere.

    I agree that copyright lengths should be examined and revised. On the other hand, the idea that all works must go to public domain ASAP is something I’m not sure I agree with. You can use high-concept words like “culture,” but when in the end you’re talking about Mickey Mouse, the concept tends to fall flat (and it amazes me how many people demand public domain rights of something most of them in fact despise). How much difference to “culture” does it really make if Disney’s movies, or anyone else’s movies, become free? Is there some reason we can’t walk away from “Steamboat Willy” or even “Citizen Kane” if we don’t want to pay for it?

    At any rate, we’re talking about Disney, and we all know that if copyright was changed tomorrow to limit access to old works, Disney would simply alter the works in order to establish a new copyright, and continue to profit off of the new works whilst suppressing the old works in every media they can reach. “Steamboat Willy 3-D,” anyone?

    Additionally, the original idea of copyright (and patent) was that, after a time, someone other than the creator could produce the creator’s product in order to make a profit. Nowhere do the laws state that, at such time as the creator loses his rights, the product would thereafter be free. And our society is full of products, especially classic books, which are produced and sold at a profit… no one expects to walk into Barnes & Noble or log onto Amazon and get a copy of Sense and Sensibility for free. The fact that a product can be given away for free is not a defacto reason for doing so.

    This is one of those areas where the old conventions no longer fit, and the rules of copyright must be addressed either to maintain the original intent of the law, or to decide where the law must change to accommodate modern conventions.

  15. Copyright violation cannot be theft.

    Because theft is something that bad people do.

    And I am not a bad person.

    Ergo, nothing I do is theft.

    Anyone who says that it is theft is, therefore, accusing me of being a bad person; and, since I am not a bad person, the people who say that copyright violation is theft are obviously mean liars.

  16. It appears to me that Copyright is self evidently a good and important thing in our society. I believe most people would agree with that.
    However it has been hijacked by corporate interests and corporatism, stretched beyond the appearance of natural justice, and disappeared into a world that ordinary people don’t understand and therefore don’t appreciate.
    Copyright should be completely rewritten, shortened, and taught in school at an early age as a concept.

  17. Okay, I was good with that right up until “beyond the appearance of natural justice.” That’s too vague for a useful statute to be set or adjusted; and I don’t see how “natural justice” fits into a man-made established limit on a man-made product. We need much more detailed descriptions to do the discussion any good.

    DD: You obviously know too much about theft… only bad people know so much about theft. Therefore you are a bad person, QED. 😉

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