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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scion2412
Reply #81 Wednesday, July 13, 2005 8:50 PM
i think it's a sad day when the term "intellectual property" is being used in conjunction with freely distributed works of art. none of us are paid for creating such works of art...nor do we ask to be paid. i like to believe that we do this for the love of simply creating something others may enjoy. i'm starting to wonder if this is the case at all. it's growing more and more difficult to post anything that at minimum doesn't draw comparisons to something else...and at it's worst, flat out accusations of ripping someone off. it seems that individuals believe that they can claim a color, texture, or design element as their own...and all others that folow are "ripping them off". i find it hard to believe that you can rip something off that is freely distributed and created for nothing. we are losing sight of what this is all about...fun. if you are one of these people, you need to create your own sight and start selling your work...trust me...you won't get rich off of it. accusations of "rips" are everywhere these days and frankly it makes me sick. most of us spend months creating this stuff only to have all of it's validity taken away by someone saying "this looks exactly like (insert skin)". and yes this has happened to me...which is exactly why i will never post another skin here again. https://www.wincustomize.com/ViewSkin.aspx?SkinID=5157&LibID=1&comments=1

there is no such thing as "intellectual property" with freely distributed items. if you believe there is...you're in this for the wrong reasons.
kona0197
Reply #82 Wednesday, July 13, 2005 8:53 PM
Jafo - yes a few months ago Brad demoted me for good reasons. We had a talk and after a month of good behavior I was reinstated. However last night I checked on my status. I was an Apprentice. Today I am not. I didn't think my comments here were that far overboard but I guess I was wrong. I should have just keep my opinions to myself. After all one would think I know better.

Anyhow thanks. Guess I have to work back up to my previous status.
bakerstreet
Reply #83 Wednesday, July 13, 2005 8:56 PM
"there is no such thing as "intellectual property" with freely distributed items. if you believe there is...you're in this for the wrong reasons."


And THAT, friends, is why it is dangerous to start linking profit to IP rights and "fair use". People like the poster above begin to believe that anything that is free is also public domain.

Then we, along with corporate megaliths, are told that anything anyone wants to do with OUR art is "fair use" as long as we aren't selling it and neither are they.
scion2412
Reply #84 Wednesday, July 13, 2005 9:05 PM
you say "our art". does anyone here own a copyright to their work? and is wincoustomize themselves not exploiting "our art" for financial gain? when was the last time you saw a royalty check? you're missing the point here. if you're doing this for enjoyment and for the love of it...why would you care if anyone ripps you off? i've always maintained that my work is public domain...if you like what you see and want to modify or change it in any way so be it. i'd love to see what others come up with and what spin they could put on it. a user at themexp remade my reinkiller skin and posted it with a new name for use with another app and took all of the credit. honestly, that was a proud moment for me. they say imitation is the greatest form of flattery.
bakerstreet
Reply #85 Wednesday, July 13, 2005 9:09 PM
"you say "our art". does anyone here own a copyright to their work?"


Everyone does unless they specifically yeild those rights to someone else. Learn a bit about it before you try to debate it.
Jafo
Reply #86 Wednesday, July 13, 2005 9:09 PM
Brick wall...head....head...brick wall....
scion2412
Reply #87 Wednesday, July 13, 2005 9:35 PM
some items that are not protected... "titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents". these are some of the very things that bring about accusations.
bakerstreet
Reply #88 Wednesday, July 13, 2005 10:07 PM
A far cry from:

"there is no such thing as "intellectual property" with freely distributed items."


wouldn't you say? I know Jafo well enough to know that when he takes down a skin he has compared the individual skin images at the pixel level to see if they are recreated or just ripped graphics. There's a difference between making a graphic that is vaguely similar and taking someone's graphics out of a zip and making your own skin...
Istari
Reply #89 Wednesday, July 13, 2005 11:17 PM
Bakerstreet, I think the point others are making is that what you object to is legally murky. Jafo/Frogboy/others do not necessarily agree fan art is illegal. Somebody making a Superman wallpaper, even if it is a derivative is not simply re-distributing, unchanged, the intellectual property of someone else. By contrast, someone taking a program or the Orion icons is distributing the exact file of someone else unmodified. There is no fair use argument at all. It's not a gray area. Fan art, at best, is a gray area topic. Warez is not.

Kona, if you got demoted, and I wouldn't be surprised you did, it is because you just seem to like to stir up crap. You come across antagonistic for the sake of antagonistic. Having apprentice access is a priviledge.
scion2412
Reply #90 Wednesday, July 13, 2005 11:18 PM
you're absolutely right. there is a huge difference between the two. when i speak about intellectual property not existing in a free skin, i'm addressing the idea that a skin that looks similar to something else is ripped. an idea that you can claim something as basic as a shape or color as your own. perhaps my idea of intellectual property is too broad...or too narrow...depending on how you look at it. my thought is that all skins are derivative of an initial design by microsoft and maintain a basic format for which it's displayed and used. that being said, can you claim a variation of someone else's work as your own property? would you not need to gain permission from microsoft to sell or distribute a variation of their work? either way...I do agree with you, directly lifting images from a zip and using them for yourself is ethically wrong. and to accuse someone of that without proof is just as wrong.

I do appologize for wandering from the topic of this thread. normally i try to show much more restraint than this. sometimes things just hit a nerv.

my ultimate point is this...worry less about what is or isn't yours. you have to agree that we're in this for enjoyment. let's not lose sight of that...
kona0197
Reply #91 Thursday, July 14, 2005 12:03 AM
Kona, if you got demoted, and I wouldn't be surprised you did, it is because you just seem to like to stir up crap. You come across antagonistic for the sake of antagonistic. Having apprentice access is a priviledge.


Sorry but I don't post just to stir things up. I hardly even post at all unless I have something decent to say. It seems I was wrong in my postings on this thread and if I could take them back I would. I have learnewd that it is not my place to point out what WC should allow and not allow. That is the managements responsibility.

I do admit I have a habit of speaking my mind and I do not always come across in my typing as politically correct or tactful. Sorry. I'll try harder to not sound so "antagonistic".
Frogboy
Reply #92 Thursday, July 14, 2005 11:36 AM

Bakerstreet,

I don't tend to make definitive statements on things I'm not sure about.  Fan art, particularly in terms of skins, are (as someone above mentioned) derivative based.  It's not a black and white issue and as I said back when this came up before, it is NOT known for a fact the legality on it. 

It's not black & white for a number of reasons:

1) There is a fair use issue. The boot screens that were brought up are derivative works of something that is publicly distributed.

2) When someone makes something publicly available on Site A to download, it is not definitive whether Site B can also distribute it.  Download sites do this all the time for instance. It's not clear.

By contrast, the Orion icons are NOT publicly distributed. They require someone to pay $8 in order to get a single copy of them. In addition, it is understood that they are for sale and not "free" to distribute.  That is why I don't think there's any comparison between fan art and piracy.

You seem to try to make it out to be some sort of black & white issue.  I've spent quite a bit of time over the past couple of years involved in intellectual property disputes.  And what I can tell you is that fan art here on WinCustomize.com is probably NOT illegal.  At most, and this is again, at most, there are potential (key word: potential) trademark issues. 

By contrast, someone using Kazaa or BitTorrent to distribute the Orion Icons are committing a felony straight out. No gray area. No wiggle room. The courts have ruled on this kind of thing countless times.

Frogboy
Reply #93 Thursday, July 14, 2005 11:43 AM

you're absolutely right. there is a huge difference between the two. when i speak about intellectual property not existing in a free skin, i'm addressing the idea that a skin that looks similar to something else is ripped. an idea that you can claim something as basic as a shape or color as your own. perhaps my idea of intellectual property is too broad...or too narrow...depending on how you look at it. my thought is that all skins are derivative of an initial design by microsoft and maintain a basic format for which it's displayed and used. that being said, can you claim a variation of someone else's work as your own property? would you not need to gain permission from microsoft to sell or distribute a variation of their work? either way...I do agree with you, directly lifting images from a zip and using them for yourself is ethically wrong. and to accuse someone of that without proof is just as wrong.

There are 3 types of intellectual property protection for our use: Trademark, Copyright, and Trade Dress (there's also Patents but that's not relevant here). 

If Apple were to complain about MacOS X skins, they would do so on the grounds of trade-dress.  And even then, it would not be certain how the case would work out.  Copyright could be used if images are being used, without modification, from the original's source.

The courts have not definitively ruled on re-distributing things that are available for public download.  For example, if someone goes to a Fantastic Four official site and downloads that thing and uploads it to another site, it may or may not be legal.  The implications of that are significant because legally, taking someone's skin and reuploading it somewhere else may be legal. What keeps it from happening are policies that skin sites enact to protect skinners which is done partly out of self-interest. 

As a practical matter, lawyers can determine what can and can't be done.  If Marvel came to site X and told them to remove a F4 wallpaper, you can bet site X would remove it.  The same works for "free speech".  I flame someone here on WC that user could decide that I am committing libel and get a lawyer to try to sue me. 

In the real world, what's legal or not is less important than what someone is willing to file a lawsuit over or not.  After all, last year TGT Soft filed a lawsuit against Stardock trying to force it to let them use the IconPackager .iptheme format without having to be granted a license.  If you can sue someone for that, you can sue someone for anything.

Jafo
Reply #94 Thursday, July 14, 2005 5:07 PM

If you can sue someone for that, you can sue someone for anything.

Yes...you can sue for 'anything'....the fortunate thing is that not 'everything' will succeed....

Draginol
Reply #95 Friday, July 15, 2005 6:43 PM
They don't have to succeed. The company with the deeper impact can buy their justice.
bakerstreet
Reply #96 Friday, July 15, 2005 6:52 PM
"They don't have to succeed. The company with the deeper impact can buy their justice."


On THAT we can most certainly agree...
Ionolast
Reply #97 Thursday, July 21, 2005 6:38 PM
When someone buys something in a store, it has to be replaced. When someone downloads a file, it is still on the server. There is no depletion of copies.
Ionolast
Reply #98 Thursday, July 21, 2005 6:39 PM
When someone buys something in a store, it has to be replaced. When someone downloads a file, it is still on the server. There is no depletion of copies.
Dracil
Reply #99 Thursday, July 21, 2005 9:31 PM
That is the difference between theft and copyright infringement, and why it is important people stop using them interchangeably.

Which is why I talked about matter replicators in the future. If I make a copy of your car, am I really "stealing?"

What if we replicated food and water and medicine for distribution to those who couldn't afford it?

Then again, perhaps with the ability to replicate all matter, capitalism would essentially no longer have a place in the world.
bakerstreet
Reply #100 Thursday, July 21, 2005 9:50 PM
"Which is why I talked about matter replicators in the future. If I make a copy of your car, am I really "stealing?"

What if we replicated food and water and medicine for distribution to those who couldn't afford it?"


If the car is patented or the design trademarked, I would assume so. You aren't stealing from the guy that owns the car, you are stealing from the company that has the exclusive right to produce their product.

A patent, tradmark, etc. gives the holder the exclusive right to produce or license the production of the item protected. Even if we had star trek syle replicators, if a company owns a patent, they are losing a sale when you produce it yourself instead of buying it.

Medicine is a big topic right now because of AIDS medications in Africa. Since many of the companies that produce the medications have the sole right to produce it, many in developing countries can't afford them. Unless you made medicine unpatentable, the companies would still have the exclusive right even if the ability is there.

We can't "replicate" stuff now, but we can certainly reverse-engineer and reproduce it. Replication wouldn't be any different, would it?


" When someone buys something in a store, it has to be replaced. When someone downloads a file, it is still on the server. There is no depletion of copies."


Many companies don't sell hard copies of software at all. ITunes doesn't have a shelf to restock. Stardock doesn't have to restock when they sell Windowblinds online. I think it is pretty obvious that it is stealing, though, given you are using a product without paying for it.

If you slap a 'Y' on your neighbor's cable line and run it into your house, are you stealing? They aren't losing material, either, but obviously you're taking something you aren't paying for.

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