Wednesday, April 8, 2015

Is It Cool If I Pirate This? Come On! You Haven't Been Selling It for, Like, 5 Whole Minutes!

Here's the deal. 

I'm reading the U.S. Copyright Code right now for a project that, hopefully, will be launching on January 1, 2016 so that I can keep myself and my team on the safe and legal side of things. It's about as fun to read as taking a hammer and dropping it on your bits while watching a Congressional Hearing about Congressional Hearings. Yet it brought up these two questions in my mind:
1.) There is a thing that you want to download from the internet. There are no avenues available for you to purchase it from a first party vendor, like Steam or Amazon, and you can only find it in secondary markets (such as used bookstores) and as scans/downloads online. The original intellectual property owners are long since gone and there is, apparently, no one in possession of the IP and no licensing of the the thing in the market (no shirts, books, so forth). Morally, is it okay to download the thing under these circumstances?
A second question:
2.) There is a thing you want to download from the internet. The intellectual property is still owned by a company/individual who makes money off the property but they no longer sell the version of the product you want to download. They have not attempted to make money off the product for a number of years. Like in the above situations there are no avenues available for you to purchase it from a first party vendor, like Steam or Amazon, and you can only find it in secondary markets (such as used bookstores) and as scans/downloads online. Morally, is it okay to download the thing under these circumstances?
Without a doubt if the owner of the copyright has not been dead at least a hundred years (and in many cases 150 years) then the product is not in the public domain - and some things (such as recorded performances of songs) might never pass into the public domain - so in the situations described above nothing that you're contemplating downloading is in the public domain. But there is this whole new thing that has developed in the last few years called abandonware. Which is essentially a situation where the copyright holder has folded and the intellectual property has passed into this realm of limbo where no one, apparently, owns the rights. 

After running this blog for the better part of two years I'm firmly convinced that I have some wildly intelligent and thoughtful readers. So I'm turning to you for help because I'm struggling with my own answers to these questions and I'd love to hear your thoughts on them.  

I'll be here, waiting. 

[Edited on 4/8/2015  at 4:12 PM EST to add the word "Morally" at the beginning of each question to help clarify my questions]


  1. Copyright grants to the holder the exclusive right to make copies of the work. A person who doesn't have explicit permission infringes that the right. The copyright holder may then sue the infringing party to redress the situation. Exactly what the copyright holder may get in terms of redress depends on various factors. All of this is handled in a civil lawsuit brought before the federal courts. As I understand it there is a dollar threshold that has to be exceed before the federal courts will hear the case. In short a case involving person making a single copy of a $3 work won't be heard. However for the internet each download counts so it can add up quickly. The copyright holder and get a cease and desist and if the infringing party persist they can get into further trouble via contempt of court and the adding in the value of subsquent infringement.

    Finally we have criminal copyright which has a set of thresholds and imposes fines for each infringement on the party.

    Understand the law is not meant to be black and white. it is a set of guidelines to be used by a judge and/or jury to protect the author's right to copyright. You need specific facts to come to a decision. This is by design because nobody can cover all circumstances and need some leeway in order to arrive at a fair and correct judgement.

    The strict answer to both of your question is that if the item is under copyright and you don't have permission then there are no circumstances under which you can copy it except for the limited cases of fair use. And fair use is limited for the purpose of commentary, teaching, criticism, etc. I.e. you can copy a section to illustrate what the hell you are talking about.

    While all copying a copyrighted work without permission is infringing, not all infringements can be dealt with. The reality for your first question who is going to sue anybody who is infringing? The second question however has an active copyright holder so there is somebody who will sue for infringement.

    Finally are you sure the first work in question is under copyright? Because pre 1976 works need to be explicitly renewed in order to remain under copyright. This is the reason that the works of H. Beam Piper and the original published Howard and Lovecraft stories are public domain. The magazines they were published never renewed their copyright prior to the cutoff date. And you find those records in the Library of Congress.

    Also you have to be careful in assuming a work doesn't have a active copyright holder. You have to do the research to be sure that it is abandoning or you run the risk of being sued for infringement.

  2. I can't speak to the morality of it - it's not legal - but the phrase you're looking for is "orphan works."

    1. Orphan works is also applicable but I'm not exclusively talking about written works which is why I went with abandonware.

  3. There's also a 3 (or maybe a 2.5) in which a property has not been used in any way by the owner for decades and yet the owner is nonetheless aggressive in protecting the property. Games Workshop is notorious for this.

    Also worth bearing in mind is that copyright rules are not consistent across the world. Something can be in the public domain in one country and not in another.

    Also also worth bearing in mind is that copyright laws can be corrupt as heck. Mickey Mouse should be in the public domain, but for some reason that I'm sure has nothing to do with Disney's wealth, the copyright keeps being extended. The question then becomes how moral is it to disobey an immoral law?

    Anyway, I'm in no way an expert but 1 seems okay to me but 2 less so.

  4. I'm not a lawyer but I'm kinda into this shit (for some stupid reason) and my understanding is:

    When something is copyrighted, copying it is "verboten except for what's fair" (aka fair use) and it is 100% up to a jury what's fair. (Braindead system huh?) This is where precedent comes into play, juries tend to, and are instructed to, go with what other juries have done in the past. There's a laundry list of 4 or 5 things they look for: A) transforming it (remixing, basically. that's why youtube videos will sometimes flip the image on a copyrighted work. the poster is claiming it's a new work, but halfassing it hardcore. it's just legit enough to cause doubt.) B) facts and ideas can't be copyrighted (that's why game rules can't be copyrighted; they're math.) C) amount, the less you use the better. (clips, samples might fly if you're running a review site for example) D) the effect on the market. (if someone is actively selling a thing, that's considered worse than if they're not. like if there's no "legit" way to get it.) E) plus there's special exceptions for parody and educational use. (like if you're trying to teach people the english word for movie and you show them a star wars movie poster as an example, that might fly)

    Sounds like the one you want is D.

    Keep in mind it's not a "crime" it just opens you up to being sued. Anyone can sue anyone they want for any reason, but they'd lose. Anyone could sue you because the grass is green, but it'd be thrown out of court. So if you do copyright shit, and the copyright owner finds out, they could sue you and they might win. So for this to happen the copyright owner needs to: A) exist B) find out about it C) be able to afford suing you. (so suck a dick, poor people; justice and copyright is for the rich.) This is my understanding of abandonware: the company just doesn't bother defending something they haven't made money on in 30 years or in some cases the company has folded and there's confusion about who actually owns the copyright. Or maybe it's just some guy who doesn't care or can't afford to sue.

    I haven't looked this shit up in 10 years, so the whole "not a crime" thing might have changed. There's been some changes like the Digital Millennium Copyright Act, so I can't promise the government wont rape you in guantanamo for even thinking about downloading an MP3.

    That's my layman's understanding anyway.
    (Oh and trademarks are a completely different ball of wax but tend to expire quickly.)

  5. Not a lot to add as Rob covered it well, but it is interesting as I was just thinking about how this wouldn't really be a problem (researching "dead" content) pre-Internet. There was a time when I regularly scoured libraries, microfiche and public and academic records I could order via mail to try and secure documents I needed for papers, projects and work. Cut forward twenty-odd years and it is truly vexing to know a document or product is RIGHT THERE but without any legal channel to secure it.

    That said.....libraries and other public resources may in fact be an avenue for grabbing a document if it's ever been in print through a legal process of lending. A hassle I know, but it's definitely a way around copyright issues or illegal downloading.

    For the moral stance, I'll just suggest that we should always presume never to second-guess the original owner/creator of a work, despite the fact that the conceptual space of open documents/creative commons is a fairly recent phenomenon and some authors may have preferred to take that route over the cessation of availability of their writings after death. If you err on the side of caution and play it within the legal boundaries then you are both doing it right and rest on firm ground for making future decisions about such issues....and maybe even can push to advocate for future copyright reforms that help get these abandoned works back into circulation as creative commons.

  6. Not trying to be a smartass, but answers on the internet are worth less than what you paid for them, and some of the other comments here have inaccuracies. You really should talk to an intellectual property lawyer for something like this.

    1. I'm actually in the process of talking to one, hopefully. Also, hopefully it won't cost me an arm, leg, a kidney, and an eye.

  7. The answer to both questions is there is no moral transgression.
    Is it morally wrong to make a copy of a music album that is long out of print and that the recording studio has no plans to re-release? Or can't release?
    Consider: the KLF. A British band who retired from the music industry and destroyed their master tapes and back catalog. The albums I have been able to find on CD I have purchased but I have also downloaded bootleg copies of the rest of their music simply because it is no longer available through any means.
    For many years the only way to listen to Firesign Theatre was through used copies or making a bootleg. Before Judges Guild revived their back catalog on dtrpg the only way to read or see Dark Tower was to download it or pay an exorbitant amount of money to a dealer who could nefariously set their own rates of extortion. I use these examples because Firesign Theatre and Dark Tower are both things I downloaded from the internet, and once they became available through legitimate means of purchase then I acquired a copy. I believe I would be morally transgressing if I knew this and didn't take action to pay the artists/publishers properly.


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