Some thoughts on the file-swapping ruling
Down with Kazaa and their ilk
Monday, June 27, 2005 by Draginol | Discussion: Industry
Over on the WinCustomize.com news page I gave my two cents on today's ruling. Based on the poll I saw on News.com, 2 out of 3 people disagree with the ruling. What a shock. "But...I don't want to have to pay for other people's work..I want it for free.."
I know a lot of people who pirate software, games, music, movies, etc. I don't harp to them about it. What ticks me off are the companies that actually make a business model out of serving pirates. eDonkey and Kazaa and the like made millions of dollars by enabling people to steal other people's stuff.
And in turn, they have harmed consumers in ways most people don't realize. Copy protection has gotten nastier, DRM has become a household term, and licenses have gotten more and more restrictve. Not that such schemes don't get cracked -- they do -- but the record industry (whom I'm no fan of either) and the like have figured out that those who don't pirate can be made to buy more stuff with more DRM to make up for those who would have bought stuff but were able to download it for free from Kazaa or something.
Such services cheapen the value of hard work too. The other day I read someone complaining how WindowBlinds was "too expensive". It's twenty bucks for crying out loud. That's just a bit more than a Pizza dinner. A decent cooking knife costs $50. An AutoScanner is $140 (and I can tell you with some experience that the production/profit margins on these things is pretty significant). Cheap shoes are $50. Stuff costs money. Yet we'll see someone complain that a software product that took years to perfect that people run every day for years that costs $20 is too expensive. And why? Because places like Kazaa have made software look worthless.
People will complain about paying $40 for a game that took two years to develop and provides support to the user but you rarely hear the same people think twice about paying $40 for a small box of legos where the buyer will never interact with the company. Places like Kazaa and their ilk devalue intellectual property. And the results hurt us all in ways that people don't realize.
Software piracy isn't as huge of a deal as many make it out to be, but the mainstreaming of it through these peer-to-peer services were steadily making piracy something that even the newbie down the street was able to do which definitely takes revenue away from hard working software developers, musicians, etc.
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Reply #62 Tuesday, July 12, 2005 9:25 PM
| You have several skins using images from Star Wars that are copyrighted by Lucas Arts. |
If Kona is talking about the Yoda bootskin, I wouldn't call that 'fan art'. Isn't 'fan art' making something that resembles/looks like, etc a well known figure?
Downloading a wall from the Star Wars site, obliterating the copyright, changing to 16 colors, etc. seems more like a rip. I know if I had made the original wall (which would be fan art), I would consider the bootskin a rip.
Reply #63 Tuesday, July 12, 2005 9:31 PM
Yes, if you want my opinion, using the superman trademark and pirating a CD are relative degrees of the same sin. In both, the owner of the IP has been denied the right to say when, where, and how his IP will be used. Your Paul Boyer example is a good one. Not only does wincusto do that for Paul Boyer, but I know, beyond a shadow of a doubt, that if one of my works was "borrowed" without permission, you'd take it down in a heartbeat.
My quandry has always been, why doesn't EVERYONE, including commercial interests, get that same consideration.
Look at the excuse most people use for distributing mp3s. "It's good advertising for the artist, and I probably wouldn't buy it anyway... and it's not like I am selling it." They are just fans out spreading the messgage. You know that is bunk as well as I do. Yet, when we apply that to Adobe icons, or the wallpaper you mention, There's a difference? Nope. We are just providing IP that doesn't belong to us because people can't get it any other way.
If I made a Superman wallpaper where Superman was a gay, axe-wielding pedophile, the trademark owners would be unenthused to say the least. That's an easy call, but who is to say what they might deem damaging to their trademark? It's for them to say what is flattering, or beneficial, or "fan art", not us. That's why we get permission.
I'm NOT attacking wincusto, and I'm NOT differing with your take on Kazaa and such. My problem is while we are shuffling over to the corporate camp to champion their rights, they are trying to tie down the loose ends of the Internet so that they will remain the eternal middlemen between artists and the public. God forbid the Internet get perverted into a medium where an artist wouldn't NEED a publisher, an agent, a PR guy, and every other leach that has a square inch to latch on. That's a point for a blog of my own, I guess.
The icon thing is a jab, I admit that, because I, subjectively, see a double standard. Otherwise I meant no attack, since I am about as big a Brad Wardell fan as a healthy heterosexual guy can be. (i.e. I'd talk you up to strangers but I wouldn't hang an open-shirt poster of you on my wall.) We're at odds about this, no surprise after 6 years and arguments on skinz.org, wincusto, and finally here. You see fan art as a good thing, I see it as a double standard. It's no biggy to me.
Reply #64 Tuesday, July 12, 2005 10:42 PM
Reply #65 Tuesday, July 12, 2005 10:44 PM
Reply #66 Tuesday, July 12, 2005 11:31 PM
Should Google be responsible because its search enginge lets you find warez sites ?
How is this different than having a search engine list P2P sites ?
Does it come down to some % of ligitimate use.
If this is the case then what is the percentage.
Could then other manufactures be held responsible for products that get misused ?
Reply #67 Tuesday, July 12, 2005 11:38 PM
the music industry tells us what to like and shut out smaller acts that actually make music worth listening to. i challenge you to find anything by Hum, National Skyline, Centaur or anything of the sorts at a retail store. personally...stealing is wrong...but so are the record companies. many smaller labels rely on P2P for word of mouth. this ruling only hurts the little guys.
so here's a thought...it can be said that the more something is fought, the more people want what they can't have. the more the music industry fights, the bigger an issue it will become. if this is as big of a problem as they say it is...join them. offer your music for free via P2P (IT'S FREE ADVERTISING!!!)...sell tee shirts, sell tickets to concerts, SIGN MORE ACTS, sell advertising at your shows, broaden your horrizons and your scope.
I can promise you that people would be less prone to pirate a shirt than a CD.
they have no one to blame but themselves for not embracing P2P for what it really is...the best thing that has ever happened to them. what they don't tell you is how many sales P2P generated for them. i would be willing to bet the sales generated would far overshadow the sales lost.
modify...adapt...overcome
welcome to capitalism
Reply #68 Wednesday, July 13, 2005 12:33 AM
| If Kona is talking about the Yoda bootskin, I wouldn't call that 'fan art'. Isn't 'fan art' making something that resembles/looks like, etc a well known figure? Downloading a wall from the Star Wars site, obliterating the copyright, changing to 16 colors, etc. seems more like a rip. I know if I had made the original wall (which would be fan art), I would consider the bootskin a rip. |
Yeah that's one of the skins I was talking about. It strikes me funny that people here say bad things about P2P and all YET we have copyrighted images being hosted here without the owners consent.
Bakerstreet was right. There is a double standard.
Reply #69 Wednesday, July 13, 2005 1:48 AM
| Everyone on the planet is free to create his own skinning site if he's of the belief he can handle 'the current Intellectual Property situation' any better than Wincustomize.com. Go for it...and God's speed.... |
Yet another history lesson, kona0187.
Reply #70 Wednesday, July 13, 2005 1:19 PM
Reply #71 Wednesday, July 13, 2005 2:47 PM
There's a lot of different threads going on in this single discussion.
1) The ruling. The ruling is essentially states that if the intended or primary use of a given service is to do illegal things then that company is liable. This is important because it marks a distinction between say guns, which CAN be used to commit illegal acts and Kazaa whose primary purpose is to commit illegal acts.
2) Bit Torrent. I understand P2P technology and Bit Torrent. There are two pieces to Bit Torrent -- the software, which I'm okay with, and the guy's search engine, which I'm not okay with because it is, IMO, primarily used to engage in illegal activity. I'm totally okay with companies using P2P technologies like Bit Torrent to distribute things. Good for them.
3) WinCustomize and copyrighted material. Simply put, there is a big difference between a "copyright violation" that quite literally takes money away from someone else and one that does no harm. Someone making a Star Wars boot screen is doing nothing that any reasonable person is going to say harms Star Wars. If anything, it promotes Star Wars. There is no negative financial impact. By contrast, when someone takes someone's icons that are for sales for $8 and distributes them for free, they are stealing. We're not talking stealing in some quasi-intellectual sense, we're tlaking good old fashioned theft. Theft in which you are literally causing an individual or company a direct loss in dollars. Arguments that comparing allowing fan art and software piracy as being related are like saying speeding an mass murder are related.
4) P2P based skin sites -- If someone wants to set up a P2P skn site, go for it. It's easy for other people to sit around talking about what other people should do.
Reply #72 Wednesday, July 13, 2005 3:49 PM
| 4) P2P based skin sites -- If someone wants to set up a P2P skn site, go for it. It's easy for other people to sit around talking about what other people should do. |
Not everyone has the resources and/or the knowledge to do so. I'm sure you've bitched about movies or TV shows, but when was the last time you made your own? So that's a weak argument.
Obviously, you're free to run your sites however you please, but perhaps you can explain why P2P, and BitTorrent in particular, would not be a good idea for WinCustomize.
I can see why you might have reservations about distributing your commercial software P2P, but I can't think of why you wouldn't want to use P2P to distribute user uploads.
Reply #73 Wednesday, July 13, 2005 4:31 PM
| Not everyone has the resources and/or the knowledge to do so. I'm sure you've bitched about movies or TV shows, but when was the last time you made your own? So that's a weak argument. Obviously, you're free to run your sites however you please, but perhaps you can explain why P2P, and BitTorrent in particular, would not be a good idea for WinCustomize. |
I didn't say it wouldn't be a good idea for WC. We've not really investigated it. But I do think it would be quite a bit more work to set up than it appears on the surface.
Reply #74 Wednesday, July 13, 2005 5:15 PM
| When someone 'shares' a file against the wishes of the copyright holder of that file it is not a case of IP semantics, but a case of unlawful distribution contravening the restrictions/limitations of the 'Right of Copy' pertaining to that file. |
I agree with this statement whether it is a file being shared or a wall or a bootskin. Well, technically they are all 'files'. I don't believe money or cost or loss really changes anything about the validity of the quote.
That being said, WC can choose to have as little or as much 'piracy' as it wants. It's owners have that say and no one else. It's not my place or anyone else's here to tell WC how to run their site or what they should or shouldn't have up. As Jafo said " ... make your own site ..." (paraphrasing here).
Now since WC has, in my opinion, a reputation as being 'rip-unfriendly', for lack of a better term, there are certainly going to be questions when works appear that would qualify as rips for many people ... especially a group of people (WC'ers) that tend to keep a watch for that sort of thing.
Definitive statements, such as Frogboy's help to clear up that uncertainty about what is acceptable and what is not.
Bottom line, as I read it, is some big name characters/logos/movies, etc. will be used with no permission from the copyright holder and some will not. It is up to the discretion of the site owner.
Deal with it, people.
Reply #76 Wednesday, July 13, 2005 7:02 PM
We don't lose money because of it, and the ripper isn't charging money for it. Why do ISPs take down sites that distribute our skins, and why do we bother fighting sites that hack up our skins and make them into website UI? Why aren't people allowed to use our icons, if we can turn around and do it to commercial interests?
I'm not trying to make a change at WC. I tried that years ago and gave up. I'm not really even doing this out of "protest", because I don't really feel much about it either way anymore. I just replied to the idea that an $8.00 set of icons is sacrosanct, and somehow stuff that is free on both ends isn't, except for skinners we know.
No worries. Like I say, I know if a company complains WC will take it down, and that's enough for me. Call it a personal flaw that I can't keep myself from pointing out the paradox when I see it.
Reply #77 Wednesday, July 13, 2005 7:19 PM
Reply #78 Wednesday, July 13, 2005 8:04 PM
I don't want to impose my will on the site (anymore), I just want Brad to admit that my perspective is correct in terms of law, even if most copyright holders don't care if it is flaunted. I just think when lines between one side and another get drawn, Brad gets antsy. I don't blame him, and frankly I cringed every time you responded, because I knew it might look like I was trying to incite dissent.
I'm not, I'm just jabbing the grande fromage a bit. It's been a while, and my jabber was feeling rusty
.Reply #79 Wednesday, July 13, 2005 8:26 PM
| I guess I learned a lesson in this arguement as my apprentice status has been taken away. |
As far as I'm aware that happened months ago...unless it's happened again since...up and down....
People are not 'adjusted' in either direction simply due to one or two comments [unless they're grossly objectionable, requiring immediate gagging/deletion]...
Baker.... I know it's your sport to ruffle these same feathers on a regular basis...but the argument is still valid.
A photoshop icon made by Adobe...for its program launching/shortcut is provided for the typical Windows GUI interaction.
Skinners and skinning extends that 'interaction' to encompass alternative 'launching' methods....for example [one of my uses] a Litestep shortcut image [bmp or png].
If a skinner [in this case me] wants to extend interactive functionality within an alternate launcher and fire up Photoshop with a shortcut there IS NO suitable object to do so...it needs to be 'created/adapted/ported'. If the resulting object/image uses Adobe's 'signature' imagery to launch Adobe's product it is an 'extension' of functionality FOR Adobe, and not strictly a 'rip'.
IF that exact same icon/image was taken and used to create a launcher shortcut image for an alternate program...eg PSP or Gimp ... then it would be inappropriate.
Now...if this 'opinion' were to be tested in court it'd probably come under the US IP determination of 'Fair Use' [remember, there IS no 'fair-use' dispensation in every country, certainly not in Oz].
'Unfair Use' would be 'borrowing' the icon/image to create a launcher for another's proggy....not to mention 'stupid', as the whole reason FOR using [the Adobe icon] is to maintain product recognition....
Reply #80 Wednesday, July 13, 2005 8:44 PM
We've knocked that one back and forth before,too. Would that fly if someone took one of the swooby "customized" Adobe icons a WC skinner made and turned it into a desktopX widget and redistributed it, though?
I agree in terms of personal use, just like adding functionality to someone else's skin or using their graphics to skin another app. You have to admit that we've persuaded ISPs to take down people's sites who were dragging skins off skinz.org and WC and putting them on their sites, though. They neither charged for them or denied us income, did they?
I remember now why I quit jabbing about this. You can't just jab without forming a Constitutional Convention, lol...
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Reply #61 Tuesday, July 12, 2005 8:59 PM
Bakerstreet -- let's get to the brass tacks, do you think fan art (or whatever you want to call it) is realy the same as pirating stuff? Do you really think the guy who decides to make a Superman wallpaper is in the same category as the guy who puts up a cracked copy of Photoshop? Because if you do, there's no point in us trying to discuss this as we're living in totally different worlds, if you donk't think they're the same then why bring it up?
In my mind, the difference is massive. When someone puts up and distributes Paul Boyer's Orion icons, they're effectively taking money away from Paul Boyer. He worked hard on those icons and has provided countless free icons to people. Yet some people have no qualms about taking his hard work that he made in the hopes of making some side-income and distributing it.
Similarly, I see a huge difference between the guy who excessively quotes an article on JoeUser.com and warez. I think most people would too.
But let's take it further -- the primary use of WinCustomize.com is not to distribute copyrighted material. THIS is a link to the current most popular items on WinCustomize.com. None of which is fan art or even remotely problematic from the most stringent intellectual property point of view.
By contrast, the principle use of Kazaa and their ilk has been to engage in the illegal distribution of copyrighted material.
The issue at hand has to do with the INTENT of a given service. What is the primary use of a given service. P2P is a neutral technology on its own. It's really the packaging of P2P and related technologies that become problematic.