logictortured.com Blog

Garth Brooks: Lock up 300 Million People so I can buy a new Mansion!

October 16, 2009 on 3:53 pm | In Copyright, General, Intellectual Property, Law | 1 Comment

Garth Brooks is back. I never knew he went away. But apparently he’s out of retirement and back in the news.

He’s complaining that the government is not doing anything to crack down on file sharing, which is allegedly killing the music industry, even though it’s not. (See also here, and here, and here.)

To the government he complains,

You’ve ignored us, because there’s 50,000 of us and 300 million voters. You’ve ignored us.

Think about that. Brooks is admitting that the use of file sharing is widespread. He acknowledges that everyone is doing it. But yet he wants the government to crack down on every single person in the US so that he can earn a few million more a year.

That’s some fricken balls! I almost feel like I should give him some credit for being so completely self-centered. It’s one thing to complain, “My family is starving so I need government help to feed my kids.” It’s another thing to complain, “Why won’t the government help me so I can buy my fourth fricken mansion?!”

I should point out that it’s already against the law to use P2P to infringe copyrights. The punishment for such use goes way beyond any physical crime. If I go to Walmart, stick a gun in someone’s face, and steal a CD, the most I’ll have to pay monetarily is for the price of that one CD, about 20 bucks. However, if I download a CD worth of music, I’d have to pay millions of dollars.

But yet that draconian law is not enough for Garthy. He wants more! Does he want incarceration? For all 300 million of us? Apparently so. Apparently, his “lost” money, which has nothing to do with P2P, is worth more than the liberty of every citizen in the US.

But this isn’t the first time Brooks put his bank account above the rights of citizens. He also claims that selling used CDs is stealing. I’m not making this up. According to Brooks, the simple act of selling a used CD is a criminal act. Of course he’s wrong. But your right to sell your stuff is nothing compared to Brooks’ right to buy a mansion.

Of course the main reason he’s having trouble selling CDs is that his time in the spotlight is over. When rock and roll killed off the careers of the vocalists from the 50s, Sinatra, Mathis, Cole, to name a few, those guys didn’t ask the government to stop the switch to rock music. They graciously accepted their time was over and moved on. It’s time for washed up has-beens like Brooks to do the same.

Artists of today realize that the net is not a hindrance to making great music, but is actually a great tool for connecting with fans.

We are the enemies of the RIAA, let's hope we win the war!

August 24, 2009 on 4:00 am | In Intellectual Property, Law, Logic, Tech | 1 Comment

We all know about the RIAA’s legal onslaught against its fans, suing people who download and share music.

In a related situation, Canadian copyright organization Access Copyright had this strangely paranoid thing to say about its customers:

It’s a simple fact that users outnumber us. But Canadian users involved in the online debate are so adept at leveraging the internet and social networks to their advantage, there’s a danger that your voices as Canadian creators and publishers will be drowned out by the chatter.

It seems bizarre to treat your customers as enemies. To sue them for loving your music. To think of them in “us versus them” terms. Why can’t the copyright industry get along with its customers?

The reason is that the copyright industry doesn’t really have customers. And because we’re not customers, the copyright industry exists solely because the government forces us to pay. And lastly, if the copyright industry gets its way, copyright will eventually trump our rights guarantied by the United States Constitution. if I’ll explain all that in a bit.

Copyrights are not property:

Someone will argue that the RIAA and Access Copyright are forced to treat some customers as the enemy because the users are stealing their content. Some might analogize that the RIAA suing a customer for stealing music is no different from Wal-Mart having a shoplifter arrested.

Of course the problem with the argument and analogy is that copyright infringement is not theft. The United States Supreme Court specifically held that in Dowling V. United States, 473 U.S. 207 (1985). It’s going to take some time, but I have to explain this to better explain my point.

First, copyright is not a property right. Copyrights and patents are government granted monopolies. These monopolies are granted by the United States Constitution in Article I § 8.

The Congress shall have Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

If copyrights and patents were property rights, there would simply be no purpose served by Article I § 8.

Property rights are a part of those “unalienable rights” mentioned in the Declaration of Independence. In other words, property rights are not given by the government, they exist naturally. So the purpose of government is not to give property rights, but to protect them. That was why Article I § 8 was included in the Constitution. Without it, the monopolies given for copyright and patents would not and could not exist.

Second, here’s a fantastic quote from one of the founding fathers explaining my second point:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. — Thomas Jefferson

What Jefferson is saying is that unlike property, ideas can be shared without depriving anyone. And because ideas can be shared, and because ideas are useful, they should be shared.

Imagine if I stole your car. You’d be unable to use it, sell it, or lease it. You’d be deprived of your property.

However, imagine that I somehow made an exact copy of your car. You could still use your car, sell it, and lease it. You’d not be deprived at all. We’d both benefit from the cars.

That’s analogous to copyright and patents. There is no deprivation when a song is downloaded. The holder of the copyright still has every right and ability to use, sell, or lease the song. Of course he might be deprived a sale. And that’s exactly why infringing is illegal under the law. But merely being illegal does not make it theft.

Anyone still reading might wonder why I spent so much time talking about property rights. I could have just cited the United States Supreme Court case and been done with it. But I had to fully explain the issue before explaining my next point.

Copyrights do not exist in a free market:

When you buy property, the physical kind, not the imaginary kind, you do so mostly because the property is scarce. You don’t buy air, because currently there is enough to go around. If you go to the store to buy Pepsi, you probably won’t buy any if the store owner is giving it away. Markets exist because of scarcity. Prices are set by the demand and scarcity of the product. My shit might by relatively scarce, but there is no demand, so the price is zero. Diamonds are scarce due to a cartel and are in high demand due to advertising, so the prices are high.

However, the artificial scarcity and sale of copyrighted material is not natural. It’s fake. It’s a legal fiction enacted to create a market where one does not naturally exist.

We did not recognize this back when we bought our music on vinyl and plastic discs. Back then the labels, the distributors and retailers provided a reasonably efficient system of distributing music. It was cheaper and more efficient to simply buy an LP rather than copy an LP onto a cassette from your friend’s LP collection.

We only recognized how artificial the scarcity of copyrighted materials is when the internet came around. Suddenly everyone on the planet could download the same song with minimal costs. We all thought, “Why am I spending nearly 20 bucks for a CD when I can download the handful of songs I like for nothing?”

And here’s the deal. We were spending 20 bucks on a CD not because a free and open market demanded that price. It was because the government mandated that price by giving the labels nearly complete control over the music via very strong monopolies.

In other words, it took the internet to make us realize that we’re not customers of the labels by choice, we’re customers by government fiat.

To hammer my point here‘s an argument by copyright supporter Ben Sheffner about why we should pay for copyrighted product:

So everyone wants the product — but too many don’t want to pay for it. Hell, I don’t want to pay for it. I would love it if I could get all the movies and music I want for free. And I would love it if I could get all the BMWs, houses in the hills, and meals at Urasawa I want for free as well. But of course I realize I can’t.

He says “I can’t” but that’s simply not true. We can and we are. The reason I can’t make an exact copy of your car out of thin air is because it’s impossible. But everyone on this planet can have a copy of a song. Once again, there simply is no scarcity with copyrighted material. And the sole reason a market exists is because the government creates artificial scarcity by giving monopolies. The only real reason we can’t get songs for free is because the government created a law that says so.

The RIAA and Access Copyright understand that. That’s why they treat their customers like the enemy. Because they realize that we’re not really customers.

They’re also used to treating us like shit. Because for the past several decades we’ve only paid because we had too. The music industry did not have to give us a reason to buy, the government took care of that for them.

Freedom or totalitarianism:

However, now the music industry is faced with a situation where there is no longer any artificial scarcity. They’re faced with a situation where selling music on plastic is an utterly inefficient system of distribution. They’re faced with a situation where the current laws cannot help them.

So they’re faced with either moving their business model into the future and giving us a reason to spend money or with living in the past and having new laws created to protect a business model that is no longer relevant. It’s not surprising they’ve chosen the latter.

But I’ll go on record now to say that it won’t work. As I’ve written about previously, the reason there is so much copyright infringement going on right now has nothing to do with our failing morals or with the internet, it’s because copyright law has been expanded to such an extent that it’s nearly impossible to go a single day without accidentally and unintentionally infringing a copyright. And yet the copyright industry wants to makes these laws tougher?!

The only way the copyright industry could win this battle is if our country is turned into a totalitarian system of government. Where every bit of data and every expressed thought is analyzed by the government in order to protect the monopolies of the copyright industry.

Of course I might be wrong that the copyright industry will fail to turn our government into a totalitarian form of government. Right now our basic freedoms are being destroyed to protect the copyright industry.

You might have heard about the three strikes laws the copyright industry wants passed. These laws would force ISPs to kick users off the net who have been accused three times of copyright infringement. The copyright industry is adamant that due process is too time consuming. Which means that proof of the infringement is not necessary, merely the accusations are sufficient.

So the RIAA wants you kicked off the net for three unsupported accusations of copyright infringement. That’s three songs. The songs sell for a buck on Amazon and iTunes. So for a mere three bucks the RIAA wants you banned from the net for eternity.

Let’s imagine a different law. Let’s imagine that the banking industry gets fed up with people stealing pens out of their lobbies. These pens are expensive, a buck each. Imagine that a law is enacted stating that any person accused by a bank of stealing three pens is banned from the entire banking industry for the rest of his or her life.

Does anyone think such a law has any chance to be passed? Does anyone seriously think that such a law makes sense? Of course it would not and of course it does not. But in the crazy world of copyrights, people actually take the proposed three strikes law seriously.

If eliminating due process isn’t enough, it gets worse. The copyright industry has actually convinced judges to ban books. Yes, in America. The land of the free. Where the Bill of Rights says that the government shall make “no law… abridging the freedom of speech.” In this country copyright now trumps the First Amendment.

And here’s one last example. We’re all outraged over large jury verdicts in tort cases. Such as the infamous McDonalds hot coffee lawsuit where someone was awarded nearly three million dollars because the coffee she had between her legs spilled and burned her. Because of verdicts such as that, laws were passed placing caps on damages to keep plaintiffs from receiving windfalls for their injuries.

In my state, for example, people who are injured in automobile accidents cases can only sue for economic damages. Which is another way of saying actual damages. In other words, you can only recover for lost wages and medical expenses.

In my state people suing for medical malpractice can recover no more than $349,700 in non-economic damages. This includes death. So if a doctor slowly and painfully kills your mother through malpractice, the most her estate can get for pain and suffering is $349,700.

While some think that these caps are unfair, we generally support them because we also do not like greed. We realize that justice is about making someone whole, not giving someone a windfall. In only rare circumstances, where the behavior of the defendant shocks the conscience of the community can a plaintiff recover punitive damages. And in that case, you can only get treble damages, i.e., three times your award. (I want to stress that punitive damages are very rare. First, you cannot even request them in automobile accident, malpractice, or contract cases. Second, proving a situation that shocks the conscious of the community is a very high burden. For example, my state’s appellate court has determined that a woman being raped by an employee with a propensity to rape is not worthy of punitive damages. Apparently, rape no longer shocks the conscience of my state.)

In the criminal realm, my state requires that criminal defendants pay restitution. But, no matter how heinous the crime, the defendant can only be made to pay actual costs and expenses. He might have raped and murdered your mother, but he only has to pay for her funeral.

However, such limitations and caps are tossed aside when copyright is involved. In the famous Jammie Thomas case, wherein the RIAA sued her for downloading and sharing 24 songs, the RIAA was awarded $1.92 million. That’s $80,000 per song. Think about it, that means those 24 songs were worth more than your own life!

And if Thomas had stolen those songs on CDs in an armed robbery, the most she would have to pay is the actual cost of the CDs, about 30 bucks! Why is downloading more deserving of punishment than sticking a gun in someone’s face?!

And as I’ve pointed out, the songs only cost a dollar. That means the RIAA is not getting three times their damages. They’re getting 80,000 times their damages! Of course some will argue that Thomas has to pay for the multiple copies people have downloaded from her. However, there was no such evidence at trial that anyone actually downloaded a single song from her without permission. The songs were in a shared folder on her computer, and the public could access them, so that was enough to prove guilt. Normally plaintiffs are not allowed to speculate about damages and the like. “Could” and “possibly” are not enough. But in the wonderful world of copyrights, speculation is perfectly acceptable.

So bit by bit our rights are being destroyed all to protect the monopolies of the copyright industry. Due process, free speech, and guarantees against excessive punishment all fall under the might of copyright. Given the choice of the copyright industry creating a new business model or protecting their old business models under new draconian laws, which option do you think better serves our country’s citizenry?

The New Game Industry is not being harmed by the Used Game Market

July 1, 2009 on 2:40 pm | In Copyright, General, Intellectual Property, Logic | 1 Comment

Slashdot has a posting about a new study showing how the used game market is harming the new game industry. I don’t need a study to know with absolute certainty that the gaming industry is not being harmed by used game sales. Through the magic of a priori reasoning, I know that you cannot be harmed merely because you’re not getting what you are not entitled.

Let me explain. Wouldn’t it be awesome if your coworkers gave you a cut of their salary, for no reason whatsoever? Wouldn’t it be great if you walked into a bank one day and the teller decided to give you a portion of the bank’s holdings, for no reason whatsoever?

Yep, that would be awesome, no doubt about it. But are you being harmed because your coworkers and bank are not giving you money you don’t deserve? Nope.

That’s what’s going on with the new game and used game markets. The new game industry somehow feels entitled to profits from the used game market. Despite having absolutely no legal basis for such entitlement. In the United States we have the right of first sale. What that means is that we can sell what we bought, even if what we bought was copyrighted material. So we have a right to sell our DVDs, CD, and used games.

Of course someone will say that my coworker/bank analogies fail because they don’t take into consideration that the game industry created the games that the used game market is selling. If you think that, you’re completely missing the point.

The fact that the game industry originally created the game is completely irrelevant to whether it is entitled to any profits from secondary or tertiary sales. It does not have such a right to profits. None whatsoever. No more than General Motors has a right to profit from the sale of the used Chevy truck you just sold. GM created the truck, does it deserve a cut from every sale? What about your house, should the contractor get a cut when you sell it, when it’s sold 100 years from now? (I live in a house originally built in 1856, exactly who am I supposed to pay when I resell and move out?)

My point is, much like how you have no rights to your coworkers pay, and much like how you have no rights to your bank’s holdings, the new game industry has no right to profits from the used game market. None whatsoever.

Of course the new game industry outright lies and claims that the used game market “Is profiting from the sale of our games.” It’s a lie because once the new game industry sells a particular copy of the game; it is no longer their game. They have absolutely no ownership right in that particular copy. So to accuse the used game market of taking or stealing their property is an outright lie.

I have no doubt that someone will argue that the new game industry is being harmed because of lost sales. I.e., consumers are buying from the used game market rather than from the new game industry which is causing the new game industry to lose money.

Let’s get one thing straight: Losing sales to a competitor is not harm. It’s competition.

The new game industry’s claim that it’s being harmed from the used game market is as asinine as McDonalds claiming it is being harmed by Burger King.

Now certainly if Burger King was unfairly or illegally competing, for example, if Burger King ignored health and safety laws to keep their prices lower, in that circumstance one could argue that McDonalds would be harmed by the unfair and illegal competition.

But in this instance there is no illegality or unfairness in the used game market. It’s not illegal for consumers to resell their games. It’s not unfair to price those used games lower because the products are necessarily inferior to the new ones.

If your industry is somehow being harmed by perfectly legal and fair competition, then it’s about time change careers because you have a complete misunderstanding about how capitalism is supposed to work. You are not entitled to someone else’s profits, merely because you want them. Get over it.

Unfortunately, this is exactly why the new game industry is having laws passed to make it more difficult to sell used games. Despite what corporations say, they don’t really want to compete in a free market, they want the government to bend over and protect them from legal competition.

Update – 9/10/09:

My post used a priori arguments. Christian Ward over at Escapist Magazine wrote an a posteriori editorial on how the used game market is not harming the new game market. I love this quote the best:

In these belt-tightening times, attempts to squash the used games industry could actually have a negative affect on the sales of new games. If we cannot find a way to make what the consumer wants at a price they are willing to pay, then we deserve to fail. That’s capitalism for you. And the market clearly shows – if you are not smart enough to do it, someone else is.

What’s wrong with the music industry and how to fix it

February 8, 2007 on 2:38 am | In General, Intellectual Property, Music | 3 Comments

Everyone is talking about how the music industry is in the dumps. But, the problem is not really new. Whenever there is a lack of exposure to new music the music industry takes a dive. Some of you might be old enough to remember when the music industry crashed back in the early 80s. Experts and pundits at the time laid the blame on piracy and video games. The theories were that kids were sharing music via cassette tapes and that kids were too distracted by video games to buy music. Sound familiar?

So the early 80s had Tom Petty shooting an arcade video game with a gun in one of his videos and Bow Wow Wow pissing off the industry with their pro-copying song “C30, C60, C90, Go.” It all seems so incredibly naive now.

Of course the music decline had nothing to do with either cassette tapes or video games. It was that white kids were sick of what radio was playing. (I’m guessing black kids were sick too, but I cannot speak from their experience.) They were sick of faceless corporate rock featuring bland music by such groups as Styx, Journey, and Reo Speedwagon. They wanted their own music, but no one was playing it.

However, once MTV got into enough homes it started exposing kids to new music and the industry took off big time. MTV brought black music to white kids along with English new-wave, metal, and alternative. (And the surge was certainly helped by the release of the CD format which made plenty of people re-buy their music collections.) The music industry was so successful that MC Hammer’s “Too Legit to Quit” was considered a complete flop and ruined his career despite going triple platinum! Today even the best selling records don’t go triple platinum.

That huge wave continued until the 90s when MTV stopped playing new music. About that same time the radio industry started consolidating and extremely narrow play lists killed off any music diversity heard on the radio. The music industry was stuck exactly where it was back in the 80s: Radio stations playing bland corporate music and fans not giving a damn because they had nothing worth giving a damn about.

It was also at that time that I stopped buying new music. Most of the music I had been exposed to was via word of mouth, sharing mix tapes among friends. Artists such as Husker Du, John Zorn and Fishbone. Once I went to law school and didn’t have time to hang out and share music with friends my exposure to new music ended.

That changed with Napster. The cool thing about the original Napster was that it was more than peer-to-peer, it was actually person to person. With modern P2P programs you’re not downloading from one person, but from several people all at once. But with Napster you were connected to one person and they were connected to you. When you saw someone download one of your favorite songs, you’d think, “Gee, if they like that song, they might have something I would like.”

I’d check out share lists of those people and would be exposed to music I had never heard. And I’d chat with people all over the world about music. I went from buying no new music to buying about two or three CDs a month. Bands such as Wilco, the Old 97s, and Pizzicato Five, to name a few.

Of course that ended when Napster pulled its plug. And because other P2P programs didn’t have the same person to person feel, I stopped being exposed to new music and stopped buying new music again. Modern P2P programs are only good when you already know what you want. They’re not designed to expose you to music you’ve never heard. And we have the music industry to blame for that.

The music industry has to accept that the vast majority of people only buy music they’re exposed to. People will see a movie based solely on a commercial, but they will not buy a CD based on a commercial, unless they’ve heard at least one song enough times to actually like it. Marketing music is odd because you basically cannot sell it until after the person has already “used” the product. Nowadays the music industry is holding its assets so tightly that they’re killing themselves off.

If the industry really wants to save itself, here’s what they should do. First, come out strongly against radio consolidation. In fact, press the FCC and Congress to backtrack and open up radio ownership. Push for licenses for as many low-wattage stations as possible. Let’s go back to the time when radio stations existed not solely for profit, but because the owner and DJs loved music. (I have a theory that people with MBAs are unable to love anything that cannot be quantified, so maybe they should be banned from working in the radio industry!)

Second, treat internet radio as a marketing tool and not a source of direct revenue. Real radio only has to pay the composer and publisher for playing music. Why should internet radio be any different?

Third, create a music television channel that plays nothing but music videos. Then spin it off and give it complete independence so it’s free to innovate and play any form of music. Don’t let it become a drone of the corporate music industry. Corporations cannot innovate. No corporation created Jazz, Punk Rock, or Rap. Corporations are great at milking the innovations of others. So give the people who are innovating exposure and then capitalize on it.

Fourth, accept that music is more than just a product. It’s not a new floor cleaner or a dessert topping. It’s an integral part of people’s lives. People use music to shape their identity in ways no other product can. Locking up music is about as asinine as locking up your first kiss or your first roller coaster ride. It’s a part of our identity and culture and people should be allowed to revel in it, not be locked away from it.

Update – 10-23-09:

The band U2 now acknowledges that the problem with CD sales is that no one cares anymore Or as Adam Clayton said,

“The commercial challenges have to be confronted… But I think, in a sense, the more interesting challenge is, ‘What is rock ‘n’ roll in this changing world?’ Because, to some extent, the concept of the music fan — the concept of the person who buys music and listens to music for the pleasure of music itself — is an outdated idea.”