Content theft on Second Life is something everyone except the people ripping off stores is surely against, and the point of this post isn’t to defend those who make their lindens by selling copies of other people’s work without permission, but to make another point entirely:
It’s not theft.
Theft is a legal term. To be theft – a crime – it must deprive the original owner of use of the stolen item. Copying it does not do this.
Downloading pirated music, copying something without permission on Second Life, neither of them are theft. Neither of them are criminal offenses (though redistribution on a large scale may be). They are breach of copyright, which is in most cases a civil offense.
Why does this matter, and why does it bug me so much every time I read people talking about “content theft” on Second Life?
Every time I watch a DVD that begins with one of those “piracy is theft” trailers, I want to scream and smash the screen. No, it’s not. Even the screens that come up before a film in the cinema warning us of the dire consequences if we should do a bootleg recording of the movie are lies. The movie and music recording industry want us to equate breach of copyright with theft. We should resist this insidious notion. Because it’s just not the same thing at all.
I am not saying it’s okay. I am absolutely not defending anyone who rips off creators on Second Life – I’m just saying we should call it what it is. Infringement of copyright – the right to copy and distribute a work.
We need to get away from this idea of equating intellectual property and ideas with physical property. Copyright is a right granted to creators, at the expense some would say of the public; in the US constitution it’s specified that the purpose of copyright is to encourage innovation and creation (in the arts and sciences) by guaranteeing that creators can make some money from their creations. Second Life content creators are perfectly justified in going after people who infringe their copyright and profit from their hard work – it’s just not theft.
A couple of articles on the topic:
– Legal blooger Jack of Kent on why Copyright Infringement Is NOT Theft
– Editor Russell McOrmond also says Copyright Infringement Does Not Equal Theft
– See also Copying is Theft β and other legal myths.
– And Second Life resident Emily Orr explains how Linden Lab’s new solution to copyright infringing materials on SL screws over the innocent user.
And to quote a case from US law, here’s Dowling v. US:
The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.
Dowling v. US specfically rejects the concept that infringement of copyright is in any legal sense the same as theft.
There’s another aspect to “property” when it comes to Second Life, which illustrates how different it is to physical property, and that involves permissions. An item can be set not to be copied but to allow transfer between owners, mirroring real life, but it can also be set not to be transferrable. This means that if I buy an expensive item, and later want to replace it with a newer, better model, I can’t sell my old item second-hand.
If I buy a car in real life, I know that if I want a better, newer one in a few years, I can sell this one to help pay for it. If I buy a horse on Second Life, and a few years later find a better horse, I can’t necessarily sell my old horse to help cover the cost. I cannot treat my SL property like real property. Similarly, if I buy clothes IRL I can chop them up, restitch them, and generally do whatever the heck I want with them. RL content producers don’t have any rights to set things no modify, no transfer!
Finally, and along similar lines, in real life wherever I go, I can take my belongings with me. I think there’s a legitimate use for things like Copybot for those who want to take their avatars and SL inventories to other grids. This does not mean they should be able to sell infringing copies of what they’ve copied over, but as the person who bought the items, they should be able to use them.
Counterfeiting. Counterfeit. That is the replacement phrase to use as Second Life dies off during 2010.
Oh and btw fuck you for trying to downplay the problem.
Nice Post Sapphire! ;)}
@annotoole – Sss’Nice comment you left. Not! Oh and btw…nah, wont say the rest! Im a Happy person! ;)}
Sapphire 1-0 :))
Counterfeit is certainly more accurate.
Why do you think I am downplaying the problem, when I repeatedly state that copyright infringement on SL is wrong and creators are right to pursue it?
Asking for accurate use of legal terms is not downplaying the problem.
I agree, it isn’t theft. Content theft is a buzzword, and it seems that the movie and record industry has been trying to embed a moralistic idea, in an effort to preserve a dying market.
The ethics of theft are pretty straightforward, because the implications are so simple. It’s 1+ for the thief, 1- for the victim. Copyrights are more complex. When talking about ethics, rights, benefits and profits in the world of IP, the lines are blurred.
Did you know that in Norway, DRM’s are illegal? They are considered infringements of the consumer’s rights towards digital media. For example, you should be allowed to put your CD on your MP3 player, or your MP3’s on a CD. For this reason, iTunes had to adjust their web shop services to sell DRM-free music in Norway. Amazon Kindle has had the same problem.
It’s pretty obvious that all digital media is not the same. Second Life is entirely different from music and movies, because of many technical details, such as the nature of SL content, and the relative scale of the markets, and the number of creators relative to the number of consumers, etc. For those reasons I have entirely different views on content in SL than I have on for example music and movies.
Wow Ann, hostile much?
“Second Life content creators are perfectly justified in going after people who infringe their copyright and profit from their hard work β itβs just not theft.”
I don’t see how that is downplaying anything.
Thanks for this post Sapphire. Maybe I also notice this because I have a legal background. Calling it theft is simply incorrect, and saying that isn’t downplaying the problem.
Dawa, totally agree regarding the difference between content on SL and music and movies. Most SL content creators are individuals and small scale businesses, not huge multinationals, and to me the ethics of downloading, say, TV shows and of ripping off SL content creators are completely different. It’s like the difference between stealing from Wal Mart and stealing from a mom and pop corner store… except still technically not stealing. π
Thanks for the post, Sapphire. Well said.
Another good reading on the same argument (by Tateru Nino):
Piracy is Stealing. Not!
Thanks Opensource – great link. It didn’t work when I clicked on it though, so am repeating it here for others:
Piracy is Stealing. Not!
http://dwellonit.blogspot.com/2009/04/piracy-is-stealing-not.html
Nice article, and I’m definitely with you on the piracy isn’t theft argument. I remember going with the same thing back in the Napster glory days *sheds a nostalgic tear* Glad I’m not the only one who hates those trailers at the beginning of DVDs!
I understand that the law is full of semantics, but copyright infringement is treated as though it were both theft and fraud in US law — whether or not you agree with that.
http://www.copyright.gov/title17/92chap5.html#506
The first legal blogger you cite is in the UK, and LL/SL operate under US law. The second is a philosopher, talking about what copyright *should* be.
When we have our show in SL, we invite people to take snaps and video, to tag it “Tuna Oddfellow” if they post it anywhere, and to license it with the Creative Commons (BY) license, which allows both modification and commercial use.
Why? Because a picture, or a video, of the Odd Ball is not the Odd Ball, any more than a tape of a Grateful Dead show is a Grateful Dead show.
There has been a running issue regarding “backup” of copyright electronic assets at least since the advent of tape recorders, but getting especially hot with the advent of video tapes.
In all cases, you are allowed to archive/backup an asset for personal use/security. However, you are not allowed to give that to another person, show it (even though it’s your copy) in a commercial venue (even a church meeting or bar), and so on.
Whether you can copy a skin/outfit/… from one virtual world to another is more of an issue of ethics at this point. The freak-out for most content creators is that copied assets are often stripped of copyright information (original owner) — which is an infringement of itself — and the creators feel that their rights will not be respected in terms of resale.
But to say “Ha! Copyright isn’t theft of a physical object, so your entire argument is worthless!” is a huge disrespect of what is, ultimately, a major cultural tsunami where law is lagging behind culture, and culture will continue to change radically as bits vie in importance with atoms.
While your argument is accurate in base premise, it’s trivializing in a way that doesn’t help resolve anything among the parties to the larger argument.
If you want to find out more cogent and legally accurate discussions of the topic that thoughtfully confront digital assets in a digital age, I’d recommend looking up the Electronic Frontier Foundation (eff.org), Larry Lessig’s work, and Creative Commons and the discussion around it.
The link you list is specifically about copyright infringement in the US for “commercial advantage or private financial gain” – which applies to rip-off merchants, but not to people using Copybot for backing things up. It also doesn’t apply to the vast majority of copyright infringements on the internet, ie. the whole downloading pirated materials thing.
That is why I believe it is important to distinguish between copyright infringement and theft. They are not the same thing. I believe there is a huge moral difference between downloading music and ripping off SL content producers, but legally and accurately, neither of them are theft. I think that to regard this distinction as trivial is itself trivializing vital issues surrounding intellectual property and the internet. I in no way disagree that what has become termed “content theft” is a huge problem for SL content producers, and that it shouldn’t be tolerated.
Perhaps I should amend this post to include some American links. Most of my bookmarks on the topic tend to be UK based, as I get half of them from my father. As he’s a lawyer and works around some of these topics, it’s something we discuss (and indeed argue about) a lot.
Let’s be clear on this material gain thing. The law says:
(a) Criminal Infringement. β
(1) In general. β Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed β
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
===
(B) and (C) aren’t about gain by the individual accused of a crime – they are about depriving the copyright holder of income.
Now, you can make an argument that depriving someone of income isn’t theft because atoms aren’t involved, but it’s a pretty weak argument.
I believe backup and archive for personal purposes is fine. But if I were a person creating, say, clothing in SL, and you took what I had created into an open grid world with no accountability for people dipping in the asset server for that grid and ripping off your inventory, would I consider you complicit in ripping me off or not?
On a legal basis, you’re not complicit — or so it seems to me (IANAL). But on an ethical basis, it’s the wild west out there, even more than SL. As more people move away from the Second Life grid into alternate grids, creators have little ability to monitor the use of their works, and less recourse.
So the creators see your backup as a rip-off artist’s back door to diminishing their income, and this adds to the anxiety and heat in the discussion.
Now, personally, as a geek who’s worked in computer security, it’s obvious to me that the restrictions on someone copying assets from the SL grid are simply a social contract. Copybot aside, there are other ways that can be and are used to copy content.
What disturbs me most about this entire controversy is that wing of the Free Culture movement who think that ripping off music et al only hurts Sony/BMG but not the creators. Oddly, the same people who profit from mashing up music and so on seem to be shy to get explicit about what music they use that’s from indy producers and so on. It’s all about taking music from The Man.
This is a very self-serving rationalization.
I’m not saying you participate in this, I’m just trying to cover concerns. Calling it theft may be a broad brush — but it’s meaningful to the creators who feel it in the pocketbook. You aren’t taking atoms from me, but you may be reducing my yearly income by US$10K or more. Not calling it theft is semantics when it’s the difference, say, between affording health care or not for an artist.
Or, whether it’s the difference between being able to fund an ensemble effort (a play, a film, an orchestra, a concert tour) or not, based on the short term and long tail revenue outlook being diminished by file-sharing.
There will be less art, if copies are made for the wrong reasons. That would be sad.
So the engineering of a social contract that supports artists, while recognizing the dynamics of a digital reality, is one of the great challenges of our time.
Fair point about the DMCA and criminal infringement, which would mean the SL rip off merchants are committing a crime.
However, I disagree with your conclusion that this means depriving someone of income is theft – it’s still a matter of copyright law. I can see that this seems like semantics, particularly to anyone who’s had their SL content ripped off, and perhaps it’s because I have a family full of lawyers that I feel it’s an important distinction, because it’s a legal term. Which is why, I suppose, I prefer to call it “ripping off”, because that’s what it does, and isn’t a legal term so avoids the question!
I don’t side with the “everything on SL should be given for free” crowd. I make and sell things on SL, though only enough to give me lindens to spend and sometimes a little pocket money beyond that. I’d file an infringement complaint if I saw someone with a store selling my things.
I suppose another reason I think the distinction between theft and copyright infringement is worth making is that it goes far beyond the world of SL. For instance, the area I’ve most often argued about these issues has been surrounding fan fiction. Some authors, and bloggers, are adamantly opposed to fan fiction, and also talk about it as theft – even though in some countries, like the UK, fan fiction isn’t even considered a breach of copyright in and of itself.
Obviously this is different to SL, as it involves the notion of ownership of ideas, rather than the concrete expression of the idea (the words or work themselves). On SL what’s being copied is the concrete expression, an exact duplication, not someone taking an idea and playing with it in their own way. Copyright infringement on SL certainly comes closer to being theft than fan fiction does! But unlike the world of fan fiction, the existing law on breach of copyright clearly covers the infringing activities on SL – although use of Copybot for personal archives may be fair use, there’s no question that people who sell unauthorized copies are in breach of the law. I can see that it feels like theft, but I think there are great dangers in reframing it as theft when it technically isn’t, largely due to the wider issues it’s a part of.
Ah, I missed a point or five in that comment —
A still or video of the Odd Ball is not the Odd Ball. But a copy of an outfit or skin or piece of decor in SL is, in fact, the very thing that the creator sells.
Usually these are priced to amortize the cost of creation across the expected sales of copies. If creators can’t know how many copies they would sell, they might have to start charging as though they estimated that some number of people will pay, and others will simply rip them off, and the cost of everything (except from people who don’t expect to value their time and make money) will go up.
If you want an environment where there’s no profit motive for creation that’s fine — please segment yourself off from the rest of us who don’t want to be starving artists. There are already too many musicians and creators eating a lot of ramen because they can’t get value for their time in SL, and for whatever reason aren’t selling their time for good value in the atomic world.
If you think that people will pay because they just have good ethics — that’s an acceptable model — IF you are the creator making that decision (like, say, Cory Doctorow). Please don’t make that decision *for* the creator. It’s arrogant, and in some cases unintentionally cruel.
When we buy something from a creator in SL that we need to put in a rezzing device as part of our show, we offer a multiplier (usually 4x or 5x retail), even though we aren’t going to distribute copies to anyone else, because we think it’s a fair payment for getting additional rights. We also make a commitment not to distribute/resell, whether the creator requests that or not.
We aren’t rich, but if we can’t afford to support the creators, we aren’t living within our means, and we are hypocrites in our own roles as creatives.
I entirely agree that we should pay for things in SL!
I don’t know where anyone is getting the idea that I’m saying we shouldn’t, except that clearly this is an emotive topic. In fact I’m far more comfortable with capitalism in Second Life than IRL – it’s our choice to be there, we do not HAVE to take part in it.
I do not think people should buy ripped off items, and I certainly don’t agree with the people doing the ripping off. I just don’t see why we have to inaccurately call it theft, and it bothers me because doing so furthers a confusion that I think does great damage to the general discussions surrounding IP rights in the digital age.
An interesting and entertainingly written article, but I would like to add some clarification to the terms.
Sapphire, when you see those warnings which irritate you so much, remember they are written by lawyers who use legal terms for legal statements which might feel intuitively wrong to non-lawyers.
According to regular English dictionary, theft is when you carry away something from the rightful owner. And by that definition you are right – copying content in SL is not a theft.
However, if you take legal definition of theft it is much more complicated. It recognizes a few activities as theft.
One of those is called “False pretenses or obtaining property by false pretenses “. It is when a person or persons obtains property by lying about a past or existing fact.
Theft (Amendment) Act 1996 partially specifies
1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.
(2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.
This might call for a long discussion of “deception” term and if it applies.
According to this definition to qualify as a theft the property doesn’t have to be taken “away” from the owner. Instead it is enough if it had been actually obtained by the false pretence. Making a copy of something you were not allowed to to copy is a false pretence.
So basically the content copying in SL is a type of a deception which is a type of a false pretense which is legally one of types of Theft
Hmm, an interesting argument, but I don’t see how the false pretenses part of it applies.
“obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for”
How is copying content “obtaining services”? There’s also no understanding that the benefit be paid for, as far as I can see. But I’m going to have to ask a lawyer on this one, as it’s an intriguing point.
About services. Another term that is not intuitive and confusing especially if applied to the VRs. Copying material for reselling is the major but not the only reason for stealing content. If you think about it – the whole SL is nothing but a content and how we use it. We express our personalities, tastes, believes, feelings, etc using content. We service each other using content. Any wrongdoing that involves content in SL is far more important for this virtual world than similar actions in RL since that is all that we have here.
The existing law system is inconsistent and confusing enough even when it talks about simple tangible assets. It absolutely not prepared to handle all kind of issues that start arising as we are moving into producing and exchanging virtual digital intangible valuables.
It obviously needs major rewriting – the last attempt was done in 2006 resulting in a new Fraud Act. So it is on the way. However, personally, I would prefer if it is done a bit later – they need to see the new elements and how they interact in practice before making new laws.
Come to think of it, regular users pay a high price for a few SOBs that try to make money of other people’s copyrighted material, making all creators scared on all angles.
Most clothes we buy not only we can’t change, loan, nor sell or transfer (trade) to others.
Wow that sounds like a copy of Windows.
Well said, Sapphire. The distinction between theft and copyright is important to realize, though it can be difficult to express what with all the RIAA/MPAA misinformation being propagated.
I agree with your points and I’m sorry to see the negativity being sent in your direction over them.
Being clever and snarky with semantics really is entirely beside the point. You seem more annoyed with pointless definitions than the problem itself, which takes income and credit away from its hardworking creators and discourages creativity within the world.
“We need to get away from this idea of equating intellectual property and ideas with physical property. ”
This from someone who takes a virtual world so seriously she blogs about it? Anyway, why do we need to get away from this? Both cause real loss to the victims, both are repugnant.
When talking about a legal issue using legal terms, it is not being “clever and snarky with semantics” to ask people to use the CORRECT legal terms. And asking people to use the correct terms does not mean lack of concern for the problem itself.
If you think it’s fine and dandy to equate intellectual property with physical property I assume you’ve never downloaded music or anything like that in a manner which breaches copyright, and are fine with the way the music and movie industries equate breach of copyright with theft and press for ever more control of the internet in their attempts to crack down on filesharing.
Of course it is theft – just because it’s a civil violation and not a criminal violation does not preclude it from the category of theft. Are you honestly saying that someone stealing a coffee table is more of a theft than stealing a creative product? Just because a coffee table is a physical object and creative products are not does not make one more valuable than another. In fact, in many cases just the opposite. You can only sell a coffee table once. You can sell multiple copies of a creative product continuously and to millions if the want is there.
Clearly this is a personal pet peeve for you and likely it’s because you feel okay about bootlegging other people’s creative product because it’s often untrackable to the bootlegger.
Your whole premise is lunacy. If someone lifts my content and puts it on their site and profits from it, whether through increased traffic and residual sales or just enhanced reputation, they have stolen something that does not belong to them.
Right now I have some tool from Hong Kong who spends lots of time on my blog digging through my archives and is clearly lifting my content. I’m getting all kinds of referrals from sex, acne and insurance sites because of it.
You might say, well hey you’re getting traffic. No I’m not – I’m not in those trades and don’t care to bump the traffic of those people just so someone may drop by my blog. I don’t want to be associated with those sites.
And, by using others’ content it dilutes the value. Why should someone come to my site if my content is on ten other blogs? And which site is Google and the search engines going to index for the content? Will mine be first? Or some other bozo who stole it (yes, stole it) and posted it as there own or worse infers through the publication that the author is somehow connected to their hideous endeavors?
What you don’t get is that creating creative product is work. Somebody sits down and takes time, energy and creativity to create that product – I mean if somebody broke into your garage and stole your car you’d probably call the cops and want it back and want the thief prosecuted, right? Are you saying that if you spent two years writing a novel and then saw it on the best seller’s list with someone else’s name on it you wouldn’t feel the same way? Or if you had a blog concept and then saw someone else had used your ideas before you could put it together you wouldn’t feel robbed. Puleeze, you’re talking out your butt here.
While you may think your article makes you sound rational and objective, mostly you just sound like a know it all who does know squat. And you are contributing to the problem – not adding anything meaningful to the discussion.
Writer Chick