by Stan Protigal

No, it's can't be "Like Shoplifting"

File sharing is not "the same as shoplifting". I'm not an accountant, but I believe that intellectual property of this sort is a Class A Intangible Asset (because it is incorporeal but can be assigned). One does not "shoplift" a Class A Intangible Asset. (International accounting standards do not distinguish between Class A and Class B intangible assets.)

The comparison of file sharing to shoplifting demonstrates the disingenuous nature of anti-file sharing campaigns. File sharing is "like an individual practicing a patented method without paying a royalty , or "like buying and wearing a fake Rolex watch .

No, "Shoplifting" is like shoplifting.

Should We Impose Restrictions on File Sharing on Ourselves?

By imposing file sharing restrictions on oneself, one is applying business restrictions to the individual. One effect of permitting restrictions of this sort is the imposition of restrictions on noncommercial use of creative works. It imposes business values on individuals engaging in non-business activities.

(I am not attempting to analyze what the present law on file sharing is; but rather advocate that the law be written to permit non-commercial file sharing.)

If we do impose file sharing sanctions, will these sanctions be limited to the actual transfer of files? Or will we be required to maintain documentation for the recordings and retain this documentation for the lifetime of the recording?

But Doesn't File Sharing Harm Artists and the Recording Industry?

The business value is that economic controls are necessary to prevent a business from making a profit from another's assets. This of course includes Class A Intangible Assets. This has a business purpose (and in other instances a consumer protection purpose).

The argument to extend these values to individuals is that individual file sharing makes it more difficult to make a profit. That can be said for a number of things done by the individual. The fact that someone else can't make a profit should not be a reason to restrict the individual.

A Response

A friend on an email list commenting on file sharing stated:

> Don't like the law? Work to change it.

I think that's the point.

There is no general consensus on this one, and it attempts to establish a new set of societal standards. I think it's a case of parts of the entertainment industry attempting to run roughshod on their customers.

Restated, I am not at all offended by people d/l'ing MP3s on a non-commercial basis. In other words, I don't accept that copying files is dishonest.

The "theft" position does not really address the entire issue, because the concept of theft includes "ownership", "improper action", and "taking" (conversion). An example would be a classic theft crime:

- a piece of personal property exists;
- the burglary or robbery occurs; and
- a taking the personal property occurs as part of the robbery.

In the case of music files, the property exists, but one must establish a new concept of improper action to make the taking illegal. The "improper action" is duplicating a file.

This places what seem to be unreasonable restrictions on individuals. It also attempts to create a new set of values. I don't agree to the new values, and I don't see a collective incentive to go along with this.

So far, limitations on transfer seemingly affect convenience with no real gain for the copyright holders. For example, I can legitimately "unlock" files I own ("turn off rights management" on my software), in order that I can listen to music on my car audio. If I purchase a DVD for example from Australia, I have to also purchase an unlocking program, even though the purchase is legitimate. This does not benefit me and imposing that requirement on me doesn't benefit the movie industry. I also don't think I should be the one to pay for the conversion software. The reason I mention this is that it demonstrates clearly that the entertainment industry is not at all interested in fairness, to the extent that if there is something that adversely affects consumers, it's roundly dismissed.

The DVD regional restriction is also a restraint on international trade, but it seems that neither WIPO nor the World Bank are inclined to do anything about it. For good reason -- this adversely affects *consumers* and not some major business.

Yet these are essentially the same people that want me to accept a new set of societal rules for their benefit. The idea is that I should accept a restriction on myself.

This is different from commercial distribution, but only to the extent that restrictions on commercial distribution don't interfere with my rights as a consumer. More likely than not, the restriction is to prevent my access to international price structures. The same channels that let me purchase my Australian DVD also let me purchase DVDs at international pricing. (We're not talking about commercially pirated copies here, which can easily be regionalized with no conversion required.)

This has been tried before. About 100 years ago, Singer sewing machine attempted to dictate how their machines could be used by the purchasors. (Purchasors were given a "license" to use the machine for non-commercial use.) At that time the Supreme Court refused to go along with the scheme. Similarly, repair of existing patented products was permitted in the '50s (Aro Convertible Top).

I make a living from intellectual property, but don't think it should be used as an excuse for coercion of the public.

- s

Another Response

"Economically, it is no different from expired milk products that can't be sold anyway, being consumed by people who have no money to buy food. Only you bully them for their actions."

Well, not exactly.

Let's take waste vegetable oil (WVO) because that's a real-life example. People burn the stuff in "grease cars" -- diesels outfitted with specially adapted fuel systems. Basically the cost of their fuel is the cost of the filter media used to keep the fried chips out of the injectors. (This is different from biodiesel, which is a refined version of the same stuff.)

Typically these guys locate a few cooperative fast food restaurants who are pleased to find someone to haul away their used fryolator oil for free.

But suppose our grease car enthusiast decides to to walk into a McDonalds, go into the kitchen and "liberate" their waste oil (without permission). The "conversion" may be a difficult issue, but in general, it would probably be "theft". McDonalds still has full possession of the WVO, even if they consider it waste. (We're talking about actual waste here; not the trans fats they feed their customers.)

BUT if our grease car driver pulls up to the dumpster, it is likely that there is no conversion. The franchise owner may be able to charge trespassing or the like but theft would be more difficult to prove, especially if the alternative is for the McDonalds to pay to have the WVO hauled to the dump.

(I hadn't checked, but I believe that most franchise owners are actually WVO-friendly.)

The point is that for a theft or any other crime to take place, one has to have the elements of the crime. One can define the elements as one wants, but without consensus, you have a crime by fiat.

(or should I say, "crime by diesel Fiat?")

(if that doesn't work, try http://www.scn.org/)
Prepared by Stan Protigal Comments or questions: email me