1. Introduction
䷑ Work on the Decayed
My first day of work on this essay was mostly invested in gathering and sorting ideas
expressed in several conversations in which I took part over the course of the recent weeks. I
also addressed the presentation of the whole, and decided on the various visual elements.
In one of those virtual discussions, I have compared illegal file sharing to cancer. As I
recalled the exchange, the disease seemed like an apt metaphor to inform the design of the
book. I quickly found pictures of cancer cells, and the crab stood out as the obvious emblem,
but it was selecting a bullet for the sections within the chapters that required the most time.
Eventually, I noticed that one of the fonts installed on my laptop includes the hexagrams of
the I Ching. When I read the eighteenth, named « Correcting » in the list on Wikipedia, my
right leg had one of its subtle spasms that told me the figure was what I was looking for. A
few hours later, as I was getting ready to compose the present introduction, I discovered the
following explanation of the image of the hexagram, also called « Work on the Decayed » :
« The wind blows low on the mountain: The image of decay. Thus the
superior man stirs up the people And strengthens their spirit. »
« When the wind blows low on the mountain, it is thrown back and
spoils the vegetation. This contains a challenge to improvement. It is the
same with debasing attitudes and fashions; they corrupt human society.
His methods likewise must be derived from the two trigrams, but in such
a way that their effects unfold in orderly sequence. The superior man
must first remove stagnation by stirring up public opinion, as the wind
stirs everything, and must strengthen and tranquillize the character of
the people, as the mountain gives tranquillity and nourishment to all
that grows in its vicinity. »
[source : Ask the Oracle, Work on the Decayed]
Takers Economy 1 Christopher Stewart
Introduction
䷑ Motivations
Most if not all the aforementioned conversations stemmed from my reactions to videos
or music files that I believe were posted illegally in various social networks. Another thread
started when I enquired about albums shared via a mailing list to which a friend added me
without telling me what it was about. Arguably, my responses weren't directed to the proper
recipients, or authorities, but in any case the ensuing exchanges provided me with relevant
material for the present undertaking.
In my opinion, one of the major problems of sharing music on the internet is that there
is often very little way of establishing that the artists, or more accurately the rightsholders,
have approved the contents for distribution in this fashion. In many instances, they haven't,
and thus propagating those creations on the net infringes their rights. When the files have
been released directly by the artists, for example through their own websites or their official
channels, then there is no doubt, but that is not the case when just anybody uploads music
to the internet.
Manifestly, there are individuals who do this wittingly in the hopes of profiting from
the operation, but not all those who take part in such activities share their bad intentions. In
fact, in my experience, it seems that a significant proportion of people who engage in such
activities on the web don't do it out of ill will, quite the contrary. Nevertheless, enjoying and
spreading media files that have been uploaded by unverifiable sources likely contributes to a
culture which doesn't do much good for most artists, nor for music in general.
There are evidently materialistic preoccupations associated with these circumstances.
However, I imagine that those concerns have been debated at length already. Although I will
brush on the subject, this is not the primary aim of the present effort. Rather, my interest is
in the more fundamental questions of what this state of affairs means in terms of individual
and societal development, how such non-consensual acts hurt those who commit them, how
those actions make it more difficult, and in some cases nearly impossible, for certain of the
people involved to fulfil their mission in the world, and therefore, how the collectivity suffers
the consequences of those violations. In other words, the view that I intend to propose is that
those infringements harm the entire artistic ecosystem, and as a result everyone ultimately
loses through them.
This is an issue that has been bothering me for quite a while, and my reactions had in
fact been silenced for too long. A few years ago, I was amongst a group of people who had a
golden opportunity to implement a new way of sharing contents over the internet, one which
facilitated the due remuneration of creators, and moreover offered incentives for file sharers,
pirates included, to play by the rules. But, to make a long story short, we weren't successful
in our attempt. I have no idea how the other individuals who participated in the project live
with this failure today, yet personally, when I see people sharing files illegally, or when I look
Takers Economy 2 Christopher Stewart
Introduction
at the state of the music industry, or when I consider how certain independent artists must
work impossible schedules in order for their creations to receive the attention they deserve, I
feel partly responsible. For various reasons, which essentially amount to selfishness, I never
tried to explain my position on the matter of illegal file sharing back then. However, I should
have, as I eventually realized. Hence, another motivation behind the publication of this essay
is to express thoughts that should have been voiced much earlier. I have faith that others will
also benefit from this undertaking.
䷑ Mission
« What has been spoiled through man’s fault can be made good again
through man’s work. »
[source : Ask the Oracle, Work on the Decayed]
In writing and releasing this book, my hope is to work on the decayed, and contribute
to reform what has been spoiled because of my carelessness. I trust that the endeavour will
have positive effects on the larger world.
In the following chapters, I will share my perspective on the actual damage caused by
illegal file sharing. In this aim, I will present my perception of the nature, value, and function
of art, and examine the inherent interconnectedness of all things. In addition, I will suggest
alternative directions towards what seem like more favourable futures for the collectivity.
But first, I will propose a succinct overview of the situation as it now stands, including
a look at certain of the technological tools currently available, copyright law and some of the
misconceptions that surround it, and arguments commonly employed in attempts to justify
infringement.
♋
Takers Economy 3 Christopher Stewart
2. The State of Play
䷑ But Everybody Else Does It !
Nowadays, sharing music in social networks has apparently become customary. There
are quantities of groups and channels dedicated to such activities and wherein the question
of whether or not the contents have been approved for that kind of distribution doesn't seem
to bother the participants. The group members or channel owners simply post the materials
regardless of the rights or the will of the creators, and objections are practically nonexistent.
Evidently, not all violations are committed wittingly, and the matter of education must
definitely be taken into account in the equation. Still, there is also the issue of the currently
available services and technologies, and what they provide, or don't provide, to help improve
this state of affairs.
䷑ But Nothing Prevents Me from Doing it !
There is obviously tremendous worth in what those platforms and tools make possible.
Not that long ago, capturing an event in real-time using a cameraphone, and publishing it so
that people located halfway across the world are able to experience it merely a few minutes
later, would only have been plausible in the context of a science-fiction story. Nevertheless,
this has become commonplace, and media of this sort are in fact used in news coverage more
and more frequently.
Likewise, from the perspective of the content creator, there is also inestimable value in
having the means of distributing one's work, in a matter of instants, to an audience that is
potentially unlimited. Moreover, being able to mark uploads as private or unlisted, or having
the option of allowing or disallowing embedding of the materials, and thus having a degree
of control on how and where they can be experienced, increases this value.
Yet, that same simplicity which facilitates the propagation of content also comes with
its negative effects. On one video sharing website whose popularity renders its identification
superfluous, the sole hurdle that might discourage anybody from uploading illegal contents
is a message warning them that they must own the copyright, or have the necessary rights
for any medium they publish. Consequently, certain people seem to assume that any content
successfully uploaded to the website is legal. Generally speaking, similar services that host
Takers Economy 4 Christopher Stewart
The State of Play
media files operate on that same principle, which supposes that users are honest, and either
familiar with the ins and outs of rights and copyrights, or willing to educate themselves prior
to uploading. The problem with that policy is that, manifestly, many users of those websites
don't know, and apparently don't care, whether contents are lawful or not. As a result, there
are quantities of material uploaded illegally to such platforms.
When looking at a media sharing page, for instance a video, there is usually very little
information helping one determine if the upload has been approved by the rightsholders or
not. The details of the channel through which the content has been published might provide
a clue, and hence give a way to the viewer who doesn't want to participate in a questionable
culture to identify legit files. If one can establish that the media is being shared via an official
channel, whether it is operated by the creators themselves or their management, for example
by a record label, then they can avoid dubious materials. Still, nothing really prevents anyone
from creating a channel that seems to be the official channel of someone else, and therefore,
this validation method is not necessarily always straightforward.
Furthermore, there are services that enable users to share contents published on those
media file hosts in additional ways. For instance, one such website allows its users to create
playlists using music uploaded elsewhere on the net, including the audio tracks of the videos
hosted on that most popular sharing platform. The music can then be shared via embeddable
players on social networks or on one's own site. This service doesn't ascertain that the music
has originally been uploaded legally or not. Arguably, considering the aforementioned policy,
nothing really forces them to, as they can make the same consequent assumption that if files
have been uploaded over there, then they must be legit. Although some of the titles in those
playlists do not infringe any rights, as many artists offer free contents, there's no way to tell
by looking at the players whether the music is being shared lawfully or not.
Another unfortunate aspect of the present state of affairs is that the responsibility of
identifying and reporting violations is incumbent solely on the rightsholders. For example, on
that same prominent video sharing website, if a viewer were to come across uploads of The
Beatles on a channel operated by an obscure individual who obviously doesn't own the rights
to the contents, the available tools wouldn't allow them to report the offender, nor to flag the
media as inappropriate. Only the proper rightsholders, or people with a right in law to act on
their behalf, can initiate an infringement procedure, and they have to do so in written form,
following well-defined guidelines, contrasting with the simplicity of the uploading process.
Admittedly, creators have some instruments at their disposal. For instance, that video
sharing website to which I keep referring offers an automated content identification program
that they claim is able to recognize « user-uploaded videos comprised entirely or partially » of
reference material provided by the rightful owners. However, this program is « designed for
exclusive rights holders whose content is frequently uploaded. » I have no idea of its actual use
and efficiency, but clearly it isn't available to everyone, and doesn't preclude all infractions.
Takers Economy 5 Christopher Stewart
The State of Play
Although they remain opposed to the practice, many artists seem to have given up on
fighting the illegal sharing of their creations. And understandably so, as the task of stopping
viral distribution of their media, that can be akin to trying to dam Niagara Falls with mouse
clicks and keystrokes, can become a too great demand on their time, which is already scarce
as it is.
Therefore, evidently, there are still deficiencies to be addressed. Still, just as distinctly,
while waiting for the next technological god to be mechanically brought onto the file sharing
stage to implement the ideal resolution to this predicament, deciding to break the law is not
a viable way forward.
䷑ But Why Do We Need Copyright Laws Anyhow ?
One of the outstanding observations emerging from my recent discussions is that the
necessity that motivates copyright law is frequently ignored, or not well understood.
In the United States Constitution, the clause quoted below is known as the « Copyright
Clause. » Interestingly enough, it is also known as the « Progress Clause. » It empowers the
Congress :
« 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. »
[source : Copyright Clause of the United States Constitution entry in Wikipedia ]
Copyright protects the creators from eventual exploitation or misuse of their work by
third parties, which in turn furthers progress itself.
If anybody could consume, use, adapt, share, or resell creations as they see fit, then, for
many creators, undertaking to bring their creations into the world wouldn't be viable. Those
who have access to more means could simply duplicate new works as they are published and
distribute them in widerscale operations before the rightful authors could do so. Then, who
would ever want to contribute to common progress, but the most self-abnegating, altruistic
individuals, or those for whom doing otherwise wouldn't be an option ?
Thus, copyright also protects the music lover, the bibliophile, the amateur of visual art,
and anyone who thrives on innovation, because it ensures there are people who are willing to
dare bring their creations into the world, for the benefit of all.
䷑ But I'm Giving It away, and It's for the Common Good !
One of the conversations I referred to above had developed around a self-improvement
video which used for its soundtrack a song by a well-known Icelandic female musician.
Takers Economy 6 Christopher Stewart
The State of Play
Clearly, the same laws apply not only to sharing already existing media files, but also
when creating new material, regardless of the nobility of the intentions of the creators, and
no matter how tempting it might be to use the contents of someone else.
Using already well-publicized materials from recognized artists presumably enhances
the final product by making it more appealing. Nevertheless, unless the well-known artists,
or more accurately, the proper rightsholders, give their approval, then such use is not legal,
and perhaps more importantly, not consensual. Moreover, recourse to those methods raises
the question of the quality and the tenor of the message the creator is attempting to convey.
It's not as if creators are short of options. For example, there are several services from
which users can download royalty-free music to use in their projects. Other sites function as
intermediaries between musicians who are willing to license their compositions, and content
creators who need songs or instrumentals. And there are countless independent musicians
who struggle on a daily basis to promote their work, and who would be more than happy to
allow their music to be featured in such creations, in exchange for the exposure, if only they
were asked for the permission in the first place.
䷑ But It's in the Public Domain !
A seemingly common misconception related to this question is the idea that whatever
is published on the internet without an explicit copyright notice is not copyrighted. Since the
adoption of the Berne Convention, in the 165 signatory countries out of 207 sovereign states,
creations are copyrighted de facto, without need for registration nor mention :
« Under the Convention, copyrights for creative works are automatically
in force upon their creation without being asserted or declared. An
author need not "register" or "apply for" a copyright in countries
adhering to the Convention. As soon as a work is "fixed", that is, written
or recorded on some physical medium, its author is automatically
entitled to all copyrights in the work and to any derivative works, unless
and until the author explicitly disclaims them or until the copyright
expires. Foreign authors are given the same rights and privileges to
copyrighted material as domestic authors in any country that signed the
Convention. »
[source : Berne Convention for the Protection of Literary and Artistic Works entry in
Wikipedia]
Therefore, when people assume that content published without copyright notice can be
used freely, or is in the public domain, they are mistaken. If an assumption should be made,
it should be instead that all content is copyrighted, unless specifically stated otherwise.
Takers Economy 7 Christopher Stewart
The State of Play
䷑ But It's My Music, so I Can Do What I Want with It !
Another misconception I have encountered is the idea that, once someone has bought
copyrighted material, they own it, and thus they can use it as they wish, including uploading
it onto the internet and sharing it with whomever they like.
But this is not the case. For instance, when purchasing music, buyers receive a copy of
the content on a support, be it a CD or a DVD or a digital file, and a license for personal use,
which allows backup copies, yet does not permit sharing those copies. Whether wittingly or
not, buyers enter into this contract by virtue of purchasing copyrighted material.
䷑ But I'm Helping the Artists !
Some argue that by sharing contents, they help the creators by promoting their work,
which in turn is assumed to accrue their revenues.
This is debatable, and possibly true in some cases, but it remains an assumption. More
importantly, as long as the authors haven't asked specifically for that kind of publicity, then
the activity is non-consensual, and likely goes against their wishes. As long as the materials
haven't been approved for distribution in that fashion, sharing them is illegal, regardless of
the nobility of the intentions of the sharers. Such actions possibly hurt the artists much more
than they help them, although this might depend on what they consider is best for their art.
Nonetheless, establishing this obviously requires asking them for their stance on the matter.
A literature review composed by an Austrian researcher in 2010 found 22 independent
studies on the effects of music file sharing. 14 of them concluded that illegal downloads have
a « negative or even highly negative impact » on recorded music sales. 3 of the studies found
no significant impact while the remaining 5 found a positive impact. On the whole, it would
therefore appear that the promotion argument doesn't stand.
A study conducted in 2006-2007 found that « music downloads have a positive effect on
music purchases among Canadian downloaders but that there is no effect taken over the entire
population aged 15 and over. » A revaluation of the same data by another academic reached
an opposite conclusion, claiming that 3 out of 4 P2P downloaders responded that they would
have bought music via paid sites, or CDs, or both, if P2P were not available, and only 1 out of
4 would not have purchased it, which suggests that the availability of P2P networks causes a
75% reduction in the demand of music downloaders.
A joint 2010 study undertaken on behalf of the Canadian Motion Picture Distributors
Association and conducted over a 12-month period in 2009-2010 found that 12,600 full time
equivalent jobs were forgone across the entire economy due to movie piracy. It also reported
that a little less than half of the direct consumer spending losses to the movie industry were
the result of digital piracy.
Takers Economy 8 Christopher Stewart
The State of Play
A recent study concluded that well-known artists could benefit from a small increase in
sales when albums were leaked early online. However, that impact is not seen for newer or
less known artists. This contradicts the argument that file sharing allows less visible artists
to have their work discovered by a wider audience, lessening the advantages of having access
to greater promotional means. In other words, it would seems that file sharing does not level
the playing field, as proposed by its advocates.
䷑ But I Wouldn't Have Found that Band Otherwise !
This is essentially the previous argument, seen from a different perspective.
Being offered the opportunity to experience the work of creators one has never heard
of before is potentially beneficial for all parties involved. It gives the recipient the possibility
to reach a position from where they can support and enjoy the endeavours of the artists in
question. But that benefit doesn't justify sharing illegal content. It's not as if there aren't any
other options.
Many artists invest in elaborate websites, official channels, and various other forms of
online presence, through which some of their creations are made available freely, specifically
for such purposes. Sharing links to those sources, or contents coming from them and hence
approved by the rightsholders, accomplishes that same objective, presumably as efficiently,
but with the significant difference that the activities are consensual.
The bottom line is that finding new artists, and helping artists getting discovered, can
be achieved via legal means, while at the same time participating in a culture that promotes
a satisfaction of one's needs and wants that is respectful of the needs and wants of others,
rather than indifferent to them.
䷑ But Those Recordings Aren't Available Anymore !
In determining if sharing is legal or not, the age of the materials might be a criterion,
as the associated copyright might have expired. Nonetheless, their commercial availability is
not a factor.
If the material isn't available, one alternative would be to contact the creators or their
management and ask them to re-release the contents in present-day formats. If it is possible
to do so, and if there are enough requests, the operation might be viable and thus profitable
for all parties concerned. And if not, then perhaps the rightsholders will consent to make the
material available freely as a gesture of gratitude towards their supporters. However, as long
as such permission is not granted, then sharing the otherwise unavailable material is illegal.
䷑ But It's Only for Fun, Not for Money !
Some people seem to think that providing a link to a store or an official website along
Takers Economy 9 Christopher Stewart
The State of Play
with the content they share illegally, or suggesting to buy the official releases of the artists,
or citing the « Fair Use » article of the Copyright Law, or claiming that they only share the
files for entertainment or educational purposes, or stating that they don't make money from
the activity, somehow exempts them from complying with the law.
As explained above, while trying to help the creators is commendable, there are legal
and consensual means of doing so.
To qualify as fair, the use must, amongst other criteria, advance either the progress of
the arts, or knowledge in general, through the addition of new elements.
If, while practising an activity, absence of monetary profit equated absence of any form
of profit, then no one would practice this activity, unless perhaps if they were obliged to. In
other words, entertainment purposes are not devoid of profit, and therefore, in a consensual
and mutually beneficial relationship, the entertained should either seek to duly reward the
entertainer for the entertainment they have made possible, or refrain to entertain themselves
at their expense.
Lastly, the educational fair use guidelines typically apply to academic contexts, such as
schools and libraries, where there is actual education taking place. Furthermore, not all uses
in those circumstances are considered fair. Thus, the argument cannot be invoked to justify
sharing files on a social network, apart maybe in exceptional situations.
䷑ But It's Only Art !
In my experience, the matter of the nature, value, and function of artistic endeavours
and their fruits appears to be widely ignored, or at least misconstrued.
Personally, this is something I would have liked to be taught about in school, and not
have to understand for myself. If the meaning of creative undertakings and their yield would
have been imparted to me at an earlier age, I would definitely have followed a very different
trajectory, presumably a more fortunate one, as I would have started exploring music much
sooner.
Nevertheless, this question I will attempt to briefly delineate in the following chapter.
♋
Takers Economy 10 Christopher Stewart
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