Shlomi Fish

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2004 Shlomi Fish This work is licensed under the Creative Commons Attribution 2.5 License (or at your option a greater version of it). 1417 14 October 2005 shlomif Forked the text from a previous document, and starting to adapt it. Tagged as CC-by 2.5 1422 21 October 2005 shlomif Added a rudimentary introduction and the entire terminology section. 1426 21 October 2005 shlomif Added a "Why File Swapping should be Legal?" Section. 1427 21 October 2005 shlomif Wrote the "About this Document" section. 1428 22 October 2005 shlomif Wrote the "Refuting Common Arguments" section. 1429 22 October 2005 shlomif Added two more examples for why file-sharing does not hurt media sales. 1431 22 October 2005 shlomif Added the "more legal uses" section. 1432 22 October 2005 shlomif Added the "Reflections on Online Stores". 1434 22 October 2005 shlomif Added the "Conclusions". 1435 22 October 2005 shlomif Added the "Other Important Copyrights Issues". 1436 22 October 2005 shlomif Added the "more links" sub-section. 1438 22 October 2005 shlomif Went over the article and corrected many problems. 1446 06 November 2005 shlomif Added the "Can File Swapping Really be Stopped?" Section. 1447 06 November 2005 shlomif Added the "How you can Help" Section. 1452 10 November 2005 shlomif Fixed a grammatical problem courtesy of t1ber from kuro5hin.org.

The purpose of this article is to explain why Internet file swapping (of media such as music files, video files, etc.) is moral, ethical and should be legal. Plus, people who share files on the Internet or download them, must not be prosecuted.

The Human Language is primarily a tool of thought, and only afterward a tool of communication. As such, mutations in the meaning of words can affect clear thinking about issues. The issue of file swapping is no exception. Before we continue, allow me to explain about the improper validity or application of some terms.

As noted by Richard Stallman, the term Intellectual property is a seductive mirage. Patents, Copyrights, and Trademarks are not equivalent to property, not even "intellectual" one. Furthermore, they shouldn't be grouped together as they are intended for different purposes and do different things. (And are treated differently according to law). Some people claim that since a copyrighted work is "intellectual property", then copying it is equivalent to "stealing". But that is not the case here.

Copyright apologists like to say that copying a work that is copyrighted and was published to the public, is equivalent to "stealing" or "theft". However, stealing involves taking tangible property without permission, and depriving the owner of one less instance of it. On the other hand, with a public work, we can make an unlimited number of copies, while not harming the original, and while respecting the exclusive rights of the author for his work. This is because we just copy it - we don't claim it is ours. Accusing people who share or duplicate media non-commercially of "stealing" obscures two other forms of media-related crimes that are in fact stealing: If someone has somehow gained access to my private files and used it to prepare his own copies (or worse delete the originals), then he has performed stealing. Not of "Intellectual Property" but of actual property, because the files are private and I do not wish them to be inspected by someone else. And privacy must be respected. If someone has made an inclusive work of someone's else's work, and claimed it was his, then it may be called "stealing" of copyrights. But copying a work that was released for public consumption, can never be considered "stealing". Instead it is merely "copying", "swapping", "sharing", etc.

The term "Piracy" is very common for the action of copying files, either for money or free of charge. One thing that should be noted about it is that the original pirates were sea-faring robbers, who took hold of ships, stole the goods, killed the people who were on board, and burned the ships. It would be a bit of a stretch to label a 10-years-old child who duplicated a CD of Music or several copyrighted files to his friend, after such villains. I personally believe that the term "Piracy" in its applied context is quite harmless and is cognitively sound. However, I will not use the term here below.

If one violates the letter of the law of my country did he commit a crime? Not necessarily. A crime is an action that is globally accepted to be unethical, according to well-defined, absolute Ethics. People who hid saved Jews during the Nazi regime, violated the law that took place in their lands. But can you call them "criminals" with a honest face? Not at all - they were very noble people, who did something almost everyone would agree was an ethical action. Now, were people who bought Alcoholic beverages during the time the U.S.A. had alcoholic prohibition criminals? Again no. The Law at this point was completely irrational, and so the American Government could not have prevented such violations, and it was a regulation that the public could not withstand. Similarly one cannot argue that people who violate laws that prohibit the non-commercial duplication of digital works are criminals. Just because the law is there does not necessarily make it a right law or a beneficial law. One can argue that these people are law-violators (or "Avaryanim" in Hebrew), but that's not the same thing as a criminal. Many times in history, acts of civil disobedience proved to be beneficial in the long run. The classical example for it is the American Revolution, but there are many other examples.

In one IRC conversation I had with supporters of actions against file sharers, I realized that while I gave a lot of arguments for my stance, they had nothing better to do than to repeat the same mantras of: "You're stealing someone else's (intellectual) property so you are a criminal." or "You're violating the law so you are a criminal.", etc. It was obvious that their cognition was contaminated with the mis-interpretations of these terms, which caused their thoughts and speech to be mutilated as well. Thus, it is high time one eliminates all the mis-applications of these terms from his or her vocabulary, because they prevent natural thought and growth on the matter.

So why should file swapping be legal? Let's examine the reasons one by one.

The primary reason why file swapping should be legal is because it's not a crime, at least not an ethical one. Sites or services that point to where to download the content are just referencing the presence of the information. Referencing or linking is never a crime. It's like instructions on how to prepare bombs, where to find illegal drugs, how to cheat various systems, where to find stolen goods, etc. By itself this information is not a crime to know, because it's protected speech. So does pointing to a copyrighted resource. So now we're left with the question whether sharing a copyrighted work (or downloading it) is an objectively criminal action. The answer is again "no". It's not a crime since the originator of a copyrighted work that was made public cannot prevent non-commercial copies from being made and distributed. As of today, many countries passed such laws, but these laws are unethical. Sharing of copyrighted work is common-place, and many of the people who do it (including many children) do not feel they're doing something wrong, or feel guilty about it. So it is ethical, and moral and should be legal. Note that selling copies commercially (as in stores of pirated media), can be prohibited by the copyright holder. But non-commercial copying (from friend to friend, or via Peer-to-Peer services) cannot.

There are many other ways in which originators of media can make money even if they allow free distribution. First of all, they can regulate the commercial use of the works. That way, commercial entities (such as Music stores, online music download services, D.J.'s in charge-for-entrance parties and commercial radio stations) must pay them royalties. Another financial option is to restrict derivation of the work. That way, persons who wish to build upon the work or include substantial parts of it in their own must consult the originator. Another option (of less substance) is to require attribution for the originator. That way, people who wish to build upon a work without crediting the originator must purchase permission from him. These three methods together give enough options for an artist to make money off his art, without restricting non-commercial copying. This is naturally excluding live performances of artists of various sorts, like Rock concerts, that are also a huge potential source of revenue.

Many people erroneously believe that file sharing hurts media sales. However, there is a lot of evidence to the contrary: Legal Music Downloads Increase in 2005 Slashdot Article about CD-R's and MP3s not hurting record sales in Australia CD Sales in Israel went up by 15% in 2004. Success of the single "No Meaning No" by Chuck D and the Fine Arts Militia that was released under a liberal Creative Commons license, that allows free distribution. The U.S. band Wilco released their album "Yankee Hotel Foxtrot" as mp3's online after their record label demanded they remix their songs. After a different record label decided to distribute their songs instead, and distributed the album, it became their best-selling album, selling over 500,000 copies. Some new artists that published albums and singles in recent years, have proven to be very successful commercially, despite the fact that their songs are commonly available for download on the Internet, via Peer-to-Peer networks or otherwise.

You've probably all heard stories of the Media organizations' witch-hunt against file sharers. From suing a female 12-years-old honour student, to a grandpa in his 70's, to a college player of American Football. They also were closing many online sites. In New Delhi the police gave the media companies an unlimited warrant to raid the houses of people suspected of media sharing. Lots and lots of "1984"-style terror. And for what? For preventing the supposed loss of sales by a limited private sector of the industry? For preventing a practically costless operation of distributing an mp3 that can be done by the "criminals" at the comfort of their homes? In a presentation he gave, Richard M. Stallman (of the Free Software Foundation and GNU project fame) gave another good reason why it wasn't unacceptable. He said that when he was a kid in school, his teacher asked the children to share their sweets with the other children. And now, suddenly they have to tell them something like "No, Tommy, don't share your music/software/videos/etc. It's illegal!". What's a child to feel in this case? Sharing is a nice part of living in a friendly society, and there's no reason we should prevent it, or else we ourselves will become more and more selfish.

Let's put things into perspective. What the media companies do is sell entertainment to people. Entertainment. They don't save lives and the economy does not depend on them, as there are many other sources of entertainment a consumer can choose instead that are available independently. The worst case (and extremely unlikely) scenario is that no-one pays for online media, and everybody just share and download music from the Internet. Would that be a bad scenario? No, the world will go on. Without people making money off selling media, but nevertheless.

This section aims to refute some common arguments against file swapping.

Some people are using "the Domino Effect" as an argument that file swapping should be stopped. What they say is that if the profitability of the Music industry would be harmed, then it will cause an economical chain-reaction that may devastate the rest of the economy, because other dependent industries may be harmed. There are two problems with this argument. The first is that there is no evidence that the profitability of the music industry is harmed due to file swapping, so there is little risk of this happening. The other is that assuming that would happen, it won't be a bad thing. That's because we essentially reduce the money that is transferred to a heavy taxer, and make the public, as a whole, richer. The public in turn, can spend this money on other merchandise, and make other industries as a whole more prosperous. This is similar to reducing income tax, while laying off some government workers.

Some people say that if the law of a country prohibits sharing files, then this law must be obeyed, because otherwise there will be anarchy. However, one must understand that if certain laws are irrational, they cannot be practically expected to be obeyed. I also personally don't see how assuming everyone share files online, the integrity of a country will be harmed. Sharing files does not involve killing people, stealing from them, nor does it involve force, threat of force or fraud. 20% of Americans enjoy file swapping, and yet the United States is functioning perfectly fine, and no anarchy is in sight.

The comparison of sharing and downloading files to disobeying traffic laws seems to be quite prevalent. But naturally, copying files does not endanger lives, nor is it actually a crime. The worst thing that can happen if one shares works of art, is loss of profit. If you disobey traffic laws, you risk the lives of yourself and of other people. This makes it a difference of Heaven and Earth in this analogy.

Aside from gaining a copy of a file one didn't buy, there are many ways to use file sharing services, that are more legitimate: Getting tracks from a misplaced CD, by downloading them from the Internet. Alternatively some people are too lazy to find the CD in their collection, and instead download it from the Internet. Getting a digital recording of a file from a purchased audio recording like an audio cassette or a Vinyl record. Getting the video clip of a song one has bought. These are usually hard to acquire separately. Try before you buy. Sharing songs that were declared freely-distributable by their originators. Getting singles with different variations for albums that were purchased, especially a long time after the release of the singles, when they are very hard to find. Prohibiting file swapping entirely will, thus be like throwing the baby along with the water. Nevertheless, all of this is secondary to the fact that preventing the non-restricted non-commercial distribution of artworks is bad.

Lately we've been seeing online music purchasing services such as iTunes, Real Music Store, etc. Such services are a good thing as they allow Media companies to make money off selling music files, while allowing users to buy and download their favourite songs without too much hassle. Some of these stores attempt to use one of the so-called "Digital Rights Management" (or "DRM") systems, to prevent the users from making use of the files as is. However, since players to play the files are present on the users' computers and these players can be reverse engineered, then this offers only fig leaf protection, and is just an annoyance. Online stores would do better to avoid such schemes altogether and just provide the plain, non-scrambled, music files. While online music stores are a good thing, it still doesn't imply that file-swapping services like Peer-to-Peer network are illegitimate. There is room and legitimacy for both.

People who fight file swapping would like to believe it can be stopped. But the opposite is the fact. The first part is the fact that there are distributed Peer-to-Peer networks, that are not controlled from a central place and in which search, uploads and downloads are not centralized. So they can say "that's fine. We'll log in with a fake client and find people who upload files are prosecute them according to their IPs". Enter Tor, the anonymous Internet communication system. Within the Tor network, traffic to the actual Internet is trafficed to different nodes in the network, and everything is encrypted, so one cannot determine the real origin of the request. If someone uploads a file from a Tor node - the file may actually reside on the host of a completely different Tor user. The measures that copyright conglomerates have taken to try and stop file-sharing were appaling. From pulling out file sharing sites and services under legal threats, to demanding ISPs to give the identities of their file-sharing users (against any reasonable measurement of privacy), to prosecuting and harrasing file sharers. All of this for fighting against a non-existent loss of profits. Will you sell your soul to the Satan in order to sell 1.2 milliard dollars instead of 1 milliard?

File swapping must be legal, because it's ethical, moral, makes economical sense, and is otherwise beneficial for artists, distributors and consumers. There's a book on my bookshelf by Ashleigh Brilliant with a very good title: "I Feel Much Better, Now that I've Given up Hope". I think this is one thing the Media companies don't understand. If they accept Internet File Sharing as a necessary "Evil", they will be able to make the best out of the new situation. Instead, they have chosen to perform a large-scale witch-hunt, which does not really help prevent file sharing, and just makes them look like the public enemy. Once the Media companies try to fight file swapping by using lawsuits, or threats, then they should be fought back in order to protect the people's ethical right to share songs. All laws that are passed to prohibit non-commercial distribution of public works, are unethical, and should be replaced with more reasonable laws.

There are several ways in which you can help fight for the cause of protecting file swapping: Write. Write school reports, university thesa, essays, news items and articles about this cause. Feel free to use material from here, or to link to it. Publish the art you create under a freely-distributable license. The Creative Commmons licenses can give you enough protection, while still retaining this right. Link and mention this essay on your web-site, in your blog, in your posts to online forums, in real-life (in chats, on newspaper items), etc. Get people to know it. Write to your representatives at the government and tell them that you wish file swapping and all related issues to be legal. Don't vote for people who fight against file swapping, and vote for those who do. Donate money, time and other resources to support the legal battle for file swapping. Together, we can stop this insanity, faster than it will be stopped on it own.

This section will cover other significant copyright issues that are at stake today and require a struggle. The first is the lengthening of the copyright term. Recently the Sonny Bono Copyright Term Extension Act that was passed in American congress extended the copyrights act by 20 years. One should note that the term was already extended several times in the past, since the first American copyrights law. 95 years for a copyrights of works of corporations is far too long, and we also risk that copyrights will be extended indefinitely this way. ("Forever minus a day") A different issue is the Digital Millennium Copyright Act (or DMCA for short). This law that was passed in the 90's criminalizes a lot of valid activity. It prohibits the writing of "circumvention devices" to bypass copyright protection (and some say every computer security measure, in general). It is actively used to threat to remove allegedly copyrighted content from web sites, because they may violate it. (See Cory Doctorow's excellent essay "Save Canada's Internet from WIPO".) It also contains a lot of other damaging clauses. The Free Expression Policy Project has an excellent report on the various issues in copyrights law in the past and today. It is a very recommended read. The Electronic Frontier Foundation has many resources related to activity against various harmful copyrights regulations.

This work is licensed under the Creative Commons Attribution 2.5 License (or at your option a greater version of it). The CC-Attribution is almost Public Domain except for a requirement to make an attribution to the original author. It was written by Shlomi Fish who also holds the copyrights.

Shlomi Fish was born in Israel in 1977, and has lived there most of his life. He is a user, developer, advocate and activist of Open Source Software. His greatest contribution so far in this regard has been Freecell Solver, a Public Domain Library for solving games of Freecell and other types of Solitaire. However, he also initiated several other projects and made important contributions to projects he did not initiate some of them very large scale. Otherwise, Fish has written several humorous novellas, stories and aphorisms, which he has released online, under the CC-by or CC-by-sa licenses. He also wrote many essays and articles as well as material for presentations which (unless specified otherwise) were released under the CC-by license. To conclude, if you think that "this guy attacks Intellectual Property so he obviously doesn't have any significant IP of his own", then this myth, in his case, can never be farther than the fact. Shlomi Fish is a Jew and an Israeli by nationality, an atheist by faith (or lack of it) and a Neo-Tech Objectivist by ideology. As such he is a firm believer in both individual rights and freedoms, and freedom from oppression, as well as a free economy (Laissez-Faire Capitalism) that is free of government intervention. He also does his best efforts to live by the values of honesty, integrity, individualism, independent thought, passion, and rational self-growth.

"Acting against anti-File-Swapping Lawsuits in Israel" was an early attempt to convey this message written by me. It sparked a discussion at the Linux-IL mailing list and a discussion at the Hamakor Discussions mailing list.

Thanks to the members of the Linux-IL and Hamakor Discussions mailing list for discussing an early incarnation of this article. Thanks to Talash for referencing the local Israeli file-swapping protection activity. Thanks to Lawrence Lessig for an excellent related presentation called "Free Culture" and for the Wilco anecdote.