Hacking For Money: Illegal Ownership of Software and Music

Table of Content

Many of the products we buy today are no more than large collections of zeroesand ones. High-priced software, high-quality music, and valuable referencematerial such as computerized databases or CD-Rom encyclopedias are commercialproducts like any other, but the media of their transmission makes themdifferent in at least one aspect: it is possible to copy them freely, or atleast extremely cheaply. A compact disc of Elvis Costello and the Attractions isdifferent from, say, a ham and swiss sandwich in many ways, but beyond theobvious is one reason that makes the nature of the two items and theirproduction and purchase very different indeed: I can only eat the ham and swisssandwich once, while I can listen to the Attractions CD repeatedly. This is aresult of the fact that the CD contains information, rather than an actualsubstance such as the sandwich has. The consumable material in the sandwich isactual food and is gone after its consumption, while the consumable material inthe compact disc is encoded binary data that will be around for the life of thephysical disc. Since the sandwich can only be consumed once, we pay out anamount of money that signifies what one sandwich is worth to us. If I wantanother sandwich, I pay another $4.95. If someone were to invent a ham and swisssandwich that could be eaten thousands of times (let’s not go into the mechanicsof how this would work) then the producer might be justified in charging manytimes the cost of an ordinary ham and swiss, on the grounds that I’m gettingmore than just one sandwich. “Buy our sandwich once, and you’ll never gohungry again!” However, one might protest this idea if we know that itstill costs the usual amount to make the sandwich. If a producer can make arepeatedly-edible sandwich for a couple dollars, and sell it for $4,000, hestands to profit hugely. The reason we might be able to justify charging fourgrand for a ham sandwich is that in our usual structure of sales and ownership,we agree with the vendor to pay a price reflective of what the product is worthto us, the consumer. In this light, it’s irrelevant that the producer only spent$2.50 to make that repeatedly-edible sandwich, because to me as a consumer sucha sandwich is worth thousands. Or to return to the example of the compact disc;it’s irrelevant that the producer only paid a nickel to produce each disc,because to me it’s worth fifteen dollars to be able to listen to “Punch theClock” at my leisure. The problem with this scenario is that it allows theproducer to profit extremely at the expense of the consumer. I don’t think I’dtoo willingly pay more than fifteen dollars for a CD, and the record companiesknow this. Five million CDs sold at whatever wholesale price gets them to be $15retail is a lot more profit than five million CDs sold at some lower price.

Labels could charge less, in the hopes that people would buy more CDs (and thisis the guiding principle behind distribution houses like BMG and ColumbiaHouse), but in general the cost is going towards promotion and marketing, ratherthan towards the minimal expense of getting the discs made and into stores. In acapitalist organization, one concept inextricably linked to marketing and salesis that of ownership, or of intellectual property. A car company might havepatent rights to manufacture and sell a particular model of car, or a recordlabel might have the rights to make and sell a particular recording. A hamsandwich is a less specific item; anyone can make a sandwich and sell it, butonly McDonald’s has the legal right to call it an Arch Deluxe. This structureworks well for assigning rights to the inventor or patent holder of a product -if someone designs a new kind of carburetor, they should have the right toexclusive manufacturing and marketing, without worrying about someone elsecapitalizing on that invention. This structure has been extended to cover themore abstract notion of intellectual property, thus giving an individual orcompany the exclusive legal right to manufacture a certain musical recording, tosell a piece of software, or to use the words “Enjoy Coke” in acommercial context, since what is owned in these cases is intellectual property- information, binary data, or an advertising slogan. But does it make sense toextend the concept of ownership to these things? In all cases of ownership, orholding the patent to an invention, the real thing being owned is the right tomake use of certain information for profit. I could make and sell South ParkT-shirts, but since I haven’t gotten permission from its owners, I’m breakingcopyright law. I could steal someone’s design for a carburetor and produce themmyself, but we generally agree that the inventor’s rights are being infringedupon, since I haven’t arrived at that carburetor design by any effort of my own.

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Stealing, we say, is wrong. The question is, what is stealing? The most obviouskind of property theft is that of stealing tangible physical objects. If I takesomeone’s ham and swiss without their permission, it’s theft. The differencebetween this and what we call intellectual property theft is the fact that if Itake someone’s sandwich, they can no longer eat it, but if I take (say, make acopy of) their software or musical recording, they’re not at any real loss -they can still use the software or listen to the music. But, if they hadintended to sell copies of said software or music, they are losing in that I’vejust acquired for free what they had intended to charge me money for. Often thetwo kinds of theft are considered as one, but I feel that a distinction needs tobe made due to the two very different natures of what is being stolen. Let’spush this a little further with an example that is commonly debated in the musicindustry regarding its morality – sampling. Now, a sampler is a tool like anyother, and plenty of musicians use it to record original samples for musicalcomposition purposes, but plenty of others also use sampling technology tooutright plagiarize other musicians’ work. Legal and permissions issues aside,this can be a dubious artistic undertaking, and there are artistic differencesbetween what Puff Daddy is doing with sampling, and what the Future Sound ofLondon is doing with it. The fact is, sampling has become simply another musicaltool – a logical extension of what composers have done throughout history byborrowing melodic and tonal ideas from one another – albeit one that can bequite easily abused. Music isn’t the only art form to involve dubious kinds oforiginality. Phraseology and style are borrowed, traded, and stolen in theliterary world constantly – a creative writing professor once told me that”Bad writers borrow; good writers steal.” Visual arts are often builtupon styles throughout history, and forms such as photomontage or collage mayinvolve copyrighted pictures of other artists’ works. Photography itself is away of artistically capitalizing on images and scenes that anyone can see withtheir own eyes, the camera a kind of visual “sampler.” In these casesit comes down to a question of whether the writer or artist being stolen from islosing anything in terms of intellectual property and marketability. It’scertainly true that some artistic statements can only be made by outright theftof another’s creation, for the purposes of placing the original work in a newcontext. A good example is a sculpture on Bowling Green State University’scampus. This sculpture is simply a large recreation, in aluminum, of Rodin’s”The Thinker,” reclined back into the ground, chin propped in his handas though watching television. Here, the famous statue is put into a new contextto make the statement that we’re doing more TV-watching than thinking nowadays,especially those of us that are in university. The sculpture would not havenearly the same effect if the subject were not such an already famous statue;the artist is aware of this. In this case, is Rodin’s original work beingstolen? The reason the sculpture is effective is that we immediately recognizeit as “The Thinker.” We also immediately recognize “Every BreathYou Take” in a particular Puff Daddy hit, but what’s the difference here?What statements are being made? Depending on our tastes, we might argue that onekind of stealing should be permissible, another not so permissible. What’s atissue here is whether a certain amount of restriction in the arts should existso that artists, writers, or musicians, can be assured a degree of protectionfrom intellectual property theft. We may argue that those who wish to beprotected by copyright law are free to be so, and few could reasonably deny anartist the right to have her work protected in this way, but I maintain thatthere’s something more at stake here – that our older notions of ownership andproperty fail to effectively apply to a modern, usually electronic method ofstorage and transmission – and that the nature of these modern storage medianecessitates a reevaluating of what ownership entails. I recently received a webpointer to a commented, internal Microsoft memo discussing the effect thatGNU/Linux will likely have on the immediate business future of commercialsoftware companies, particularly Microsoft itself. It seems that Microsoft feelsthreatened by the presence of an efficient, well-supported, versatile, and mostimportantly, free operating system such as GNU/Linux, and is beginning toquestion whether they as part of the commercial software industry will be ableto compete with this seemingly superior product. The memo details variouspossible strategies for counterattack, and its authors are certainly moreknowledgable than I am about the pros and cons of each system. One thing isclear, though – the possibility of such a free, user-created open-sourceoperating system becoming the universal standard over Windows or MacOS is morepresent now than ever; the OS wars are an analogy for a phenomenon that isconstantly occurring in the world of electronic media, the appearance of arevised concept of ownership. Ownership in the case of a piece of software restswith the company or individuals who design and program it. Since GNU/Linux hasgenerally been treated as a community-owned product (which is the idea behindopen-source software), there are different restrictions on its distribution andlicensing than there are on commercial software products like Windows orWordperfect. To use a specific example, the GNU public license (which you canread here) roughly states that you can legally distribute or sell GNU/Linux or aderivative of it, provided you give the recipients all the rights that you have.

This is very different from a commercial product such as Windows 98, which canonly be sold and licensed by Microsoft, and whose source code may not bemodified by anyone other than Microsoft. The benefits of free software are many;the most obvious is that the software may be modified, for better or worse, byits users. (“Free” in this context generally means open-source,shared-development software, rather than implying you can always get it forfree). This means that free software is infinitely customizable to thoseknowledgeable enough to customize it. One may claim that anyone always has theright to program their own piece of software. The advantage to modifyingexisting software is the shoulders-of-giants principle: Why design my ownoperating system from the ground up when I can take the work done by LinusTorvalds and the hundreds of other skilled programmers around the world, andbend it to my whim? This is a much more flexible system than one in which I mustdepend on Microsoft to provide me with every convenience I desire. How does thisapply to the arts, though? Software is almost universally the kind of thing thatis constantly being altered, updated, and optimized. Art is generally considereda thing that is made once and finished afterwards. I don’t plan on remixing ormodifying my Elvis Costello and the Attractions CDs. But should our copyrightand licensing laws necessarily prohibit those who wish to take an existing pieceof art and build upon it from doing so? Remixing is often done with the consentof the original artist. I don’t know whether the sculptor who made the”Thinker” adaptation on BGSU’s campus consented with whoever holdsproperty rights on Rodin’s work these days; chances are he didn’t, probablybecause the original work is so easily recognizable. But issues of permissionaside, how far should we restrict the right to sample, borrow, steal, oroutright plagiarize the artistic property of others? And ultimately, should arteven be subject to property laws in the same way anything else is? Our past andcurrent notions of ownership entail a sense of giving rights to the creator of acertain product to produce, distribute, and sell that product in whatever wayshe chooses. Since the artist, programmer, musician, or worker-in-general inquestion is putting some time and energy (and often money) into the productionof whatever work of art, software, or music is in question, it only seemsreasonable to compensate them in some way, the most universal of which is withmoney. Obviously not everyone producing something is asking for money in return(as the previously mentioned GNU/Linux project shows), and the compensation inthese cases is represented by the benefits experienced by the community as awhole, rather than the recognition or financial reimbursement that the artisan(in this case the programmer) personally receives. The artisan is usually freeto choose who may profit by their creation, and the terms under which they mayprofit. Although it should be the right of the programmer, artist, or musicianto decide what terms of ownership or licensing shall be applicable to theircreation, the media on which they choose to distribute their work might play apreviously ignored role in the way that work will be treated by the community.

While the law has generally been extended to cover all forms of media equally,and to give the artist copyright protection regardless of the distributionformat used, I maintain that the medium of transmission is at least as importantas the material being protected. Sometimes, the media through which a creationis propagated has more effect on the likelihood of its being borrowed or stolenthan the creation itself or any existing laws protecting it. Just as theinvention of the printing press vastly increased distribution and thus alteredforever the ways in which ideas travel, the evolution of electronic recordingand transmission methods directly affects the way ideas are copied, distributed,and recombined into new ideas. Prior to the printing press, communication had tobe verbal, or copied by hand. Prior to electronic media, written communicationhad to be physically duplicated, at some cost to those desiring copies. Nowanything can be copied, altered, republished, and copied again, with no expenseother than time. An example is the difference between a physical medium and itselectronic counterpart: Musical recordings on vinyl LP are harder to copy thanMP3 files. A photograph or color print is considerably more expensive toreplicate than a Jpeg, and a library book is more difficult to copy than a textfile on a computer. The artists who choose to use traditional methods -cassettes, film, and paper – to create and distribute their work stand a lesserlikelihood of having their work duplicated or altered than those who port theircreations to digital. Digital is more practical for some reasons: you can fittwice your weight in books on a CD-Rom; email is faster and cheaper than postalmail; digital video offers possibilities undreamed of in the days of film. Butwith all that enhanced convenience, speed, and versatility comes the increasedrisk of the previously mentioned modes of duplication. Marshall McLuhanconceived that the medium is the message – that the form which our communicationtakes is of more relevance than its actual content. Now that we’ve grownaccustomed to the electronic medium, content is re-emerging with the rapid andinexpensive duplication and alteration that is only possible with thatmedium. I’ve touched upon some of the comparisons that can be made betweenan electronic, or otherwise easily replicable product, and a physical,not-so-easily replicable product. Obviously there are differences, but are theseenough to warrant the claim that ease of replicability implies a revised mode ofownership? Just because software and digital audio are easy to copy, does thatmean we should? And does the digital nature of some products mean that theoriginator of those products should benefit any less than they would have hadthat product been in traditional physical form? An argument that may be used infavor of copyright protection for electronic media is that if an artist orprogrammer is hoping to make a substantial living through sale of their work,then that work should be protected. Why should an article or novel be protectedany less merely because it is published on the World Wide Web, rather than in aprint magazine? In both cases, the original author should have the right toclaim ownership of what they’ve written – especially if someone else stands toprofit by taking that work and unjustly claiming it as their own. Contrastingly,the author should also have the right to publish their work as public domain, oranonymously – and thus claiming no ownership rights on it – but we may alsoagree that it would be equally unjust if someone were again to take that work astheir own and profit by it (this latter case is different only in that theoriginal author is not losing out, since they had never planned to profit bytheir creation in the first place). In both cases we usually consider it wrongfor the work to be stolen, regardless of what conditions the original authorpublished it under. Is it feasible to utilize another kind of copyrightprotection – one which protects a public domain creation from being unjustlystolen? This is something like what is happening with GNU/Linux and its sourcecode; part of its license provides for protection from patents. Or, to quotefrom the GNU General Public License itself, “…any patent must be licensedfor everyone’s free use or not licensed at all.” This is quite a powerfulidea. The authors of a work of public domain software have ensured that itremains public domain. The driving concept here is the idea that allowing thecommunity to directly influence the evolution of the software (by giving themthe source code and all the rights that the original authors have), everyonebenefits. Rather than one company benefitting at the cost of the community (asis the case with most commercial software) the free software ethic provides away for everyone to benefit, and moreover provides protection from those whowould leverage that freedom for personal gain at the expense of the community.

Might this be applied to realms of creation other than software? Just as thereare functional advantages in allowing a community to modify a piece of software,might there be literary advantages in publishing poems, articles, essays, oreven novels as public-domain works? Or musical advantages to publishing freesample, drum loop, or song databases? Musicians and writers are known to be apicky bunch when it comes to letting others tamper with their work – and ofcourse, those that don’t want their work tampered with can always copyright itand claim ownership for themselves, just as most software authors copyrighttheir work and don’t release the source code. But for those who wish tocontribute artistic works to a community-based effort, under the assumption thatothers will revise and improve those works, protection should also be offered.

Granted not everyone is capable of improving on someone else’s creation, but aslong as everyone has equal access and privelege to alter those creations, thebest end product will eventually emerge. If you stir up the pot enough, thecream eventually rises to the top, and it will be there for everyone to shareand benefit from. One of the provisions of United States copyright law is forthe copyright owner to authorize others to have any of the rights that they, thecopyright owners, have. Section 106 of the U.S. Copyright Law grants the ownerof a copyright “…exclusive rights to do and to authorize…” any ofa number of things that we commonly assume to be the rights of a copyrightholder: to reproduce the work, to prepare derivatives of it, to distribute orsell copies of it, and to present the work publicly. And Section 201d providesfor the owner of a copyright to transfer ownership of that copyright to someoneelse, thus giving them all of the same rights – that is, the right to reproduce,modify, and sell the creation, as well as transfer ownership to someone else.

Sound similar to what I’ve been talking about? A mistake that I often witnessgoes something like this: “MP3s are illegal because they’re stolen from themusician who actually made the song.” This misnomer is familiar to anyonewho’s spent any time browsing the MP3 culture on the internet; it’s oftendifficult to convince the mistaken party otherwise, since it is indeed commonfor MP3 to be used illegally, thanks to its high quality and portability. In thedays when a copyright can be owned on a brand name, a trademark on a simplephrase, or a legal claim of intellectual ownership of a bunch of zeroes and onesthat exist on someone else’s hard drive, it is easy to assume that simplybecause a certain file format is commonly associated with illegal activity, thatformat itself is illegal. For a while I’ve argued that we’re already progressingbeyond the conventional idea of owning physical objects, to the modernizedconcept of owning ideas and information. Already most of the cost of a compactdisc or software package goes towards its development, advertising and marketing- all of which are services, rather than substantial realities like a ham andswiss sandwich. It would only be a small step to remove the physical aspect ofthose products entirely; consumers would pay for the privelege of owning theMP3s of an album, or of running certain software on their computer, of owningthe Acrobat files of their favorite novels, of having a painting by theirfavorite artist in their Windows background. But such a reality will push evenfurther the insecurity of intellectual ownership; currency is already so largelyelectronic that perhaps one day the distinction between electronic currency andelectronic property will become so blurred that the two merge. One piece of art,music, or software would be paid for with another – instant electronic barter.

And then, who will be able to claim ownership of anything?

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