From: Hermit (hidden@lucifer.com)
Date: Thu Jul 03 2003 - 10:02:26 MDT
[lotusfox] you rule hermit!
[Hermit] Why thank-you blush
[lotusfox] this argument is exactly what i was trying to explain to a friend of mine yesterday. he's absolutly convienced that people trading mp3's is both theft and a crime. even though he is still willing to copy music. should i turn him in?
[Hermit] While, as I have shown, using radio broadcasts is not theft in any sense of the word, mp3 (and other) trading raises slightly different issues. Both, while still not theft, have been made into not only a civil offense, but a serious crime. A crime, like drug taking, which injures neither society nor individuals (but see below), but where the accused seems to have lost the right to the presumption of innocence, can end up in jail and, in consequence, can get a person a felony record with consequent loss of most civil rights including the right to vote. With the media companies announcing that they are "going after" individual traders (anyone heard of vigilantism?) there appears to be a risk of being flattened by the system. As such, like drug use, unless you have thought about the probable consequences of being caught, as well as the probability of being caught and have decided that gains to you (or possibly the value to yourself of the statement your arrest and prosecution may make to society (but b
e realistic assessing this)), makes the risk acceptable, engaging in trading in places where it is likely that you will be monitored and possibly used as an example, is not only harmful, it is as stupid as lighting up a toke in front of a police officer, when you could simply refrain from drug use - or could at least choose a location where you are highly unlikely to be forced to accept the probably draconian consequences of your choices.
[Hermit] "Turning somebody in" or worse, threatening to do so, could conceivably make you eligible for charges of blackmail and worse, conspiracy type indictments where you are deemed guilty until you prove yourself innocent (don't ask about what happened to the constitutional rights of the accused - they have been deemed inconvenient and disposable). When "guilty" of the same behavior yourself, tit-for-tat suggests that proposing to "turn somebody in" approaches the degree of insanity of attempting to make a large percentage (some 1/3 of all Americans) of the population into criminals.
[Hermit] Notice that the artists (authors) are being deprived of a small benefit by mp3 (and DiVX et al) trading, and while it could be argued that the current media and distribution arrangements harm them more than trading (and to my view do nothing to encourage the "Progress of Science" or "useful Arts"), this is not an effective defense (tu quoque is always invalid). However, the enforcement of the distribution/media company arrangements certainly appears to me to deny and deprive people of rights guaranteed by the 9th and 10th amendments as well as by regulation and custom (fair use), and this might yet be used as a valid defense - yet given the reality of the court structure, will probably still fail.
[Hermit] Bear in mind that there are many technical "solutions" which do "mask" the origin and destination of files, making prosecution at best impossible, and at worst unlikely. And the problem that the media distribution companies face is that use of such systems is more likely to proliferate the more successful their attacks on "ordinary users". Given that this is the situation, this makes it likely that the current approach will simply result in the same tragic situation as we see in the drug environment - where the penalties sought against "ordinary users" become more and more harmful as the probability of a successful prosecution declines. Meaning that the law becomes utterly inequitable (there used to be Constitutional defenses against this too).
[Hermit] So what can/should be done to prevent this from happening.
[Hermit] I'd argue that there are a number of approaches that could be taken. One approach - to my mind the most desirable - would be to use this as a platform to "fix the system." Would the 80 million people engaging in trading be prepared to vote for a presidential candidate who says this (and the loss of other freedoms) needs to be fixed? If so, this might be a very beneficial outcome. Certainly the current situation precludes the deployment of most of the following potential "fixes" and as we have seen threatens an ever escalating "war on users."
[Hermit] We know that the average consumer spends $120/year on media. So one self evident solution would be a small levy (I suggest $2/month for a DSL/Cable user - equivalent to average media spending) based on bandwidth available being assessed on all Internet connections (and potentially disk burners or blank media), to be paid on a pro rata basis (popularity) to copyright holders - and simply making trading (and disk burning) legal. While this is still "unfair" in the sense that some people will be paying for, but not using this potential, the simplicity of such a scheme makes it socially beneficial - and would raise more for copyright owners than the current media distribution channels.
[Hermit] Another approach would be to establish an "honor" system. Where a user could pay a small fee - perhaps 20% of the cost of the media through conventional channels for a complete copy or a pro rata rate for partial copies - directly to a trust established in favor of the artists. I suspect that such a system would be widely used (and would again benefit artists far more effectively than the current situation). Such a system could be established independently of the media companies - and would provide a very effective defense against charges of "theft".
[Hermit] Yet another approach would be to mandate such a system, where a "legal" (and high quality) download would be available to anyone paying an appropriate fee - and possibly an even smaller fee allowing pay per use. Such a system could be trivially implemented by means of a "license to use" based on existing public key technology. If this were implemented by government (e.g. Library of Congress), then unlike the disasters being dreamed up by the media companies (and juggernauts like Microsoft) this need not mean attempting to block fair use, as the file need not be locked away behind mandated protection systems.
[Hermit] There are many other potential fixes (and bypasses) which permit the exercise of rights without shortchanging artists. Some appear to have potential commercial value - or although non-commercial, may be legitimate "work-arounds" to the existing minefields and so are not discussed here.
PS Caveat: I'm not a lawyer and the above is my opinion not legal advise! Indeed, anyone thinking that they have found legal advice on the Internet is probably terminally mentally impaired and the advise almost certainly worth exactly what is paid for it (nothing).
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