IP & p2p: Part 2General Market Structure

So, having gone thru the lesser points, let's examine the main points of JDG. First, the RIAA and MPAA are organizations devoted to the preservation of the big companies' position in their industries. Second, that the artists will benefit from p2p. I'm right there next to JDG in his first point, but the second does not necessarily follow.

In general, there are four groups which are involved in this market adjustment. There's the creator, the distributor, the merchant, and the consumer. It's a fairly typical market setup which could be applied to most items in a capitalist market. The major difference is that in order for intellectual property to be profitable enough to produce an artificial monopoly must be created. If it is not there is no incentive for distributors and merchants to become involved and product flow stops or is seriously curtailed.

Why? Glad you asked. Distributors in this system are also the people who bankroll the creation of content. They identify a potentially lucrative creator; they do their best to improve the creator's product; they promote the creator; they bite the bullet when the majority of creators fail; and they exploit those creators who succeed. In this system both the creators and the consumers are exploited as much as possible to maximize profit for the distributor and merchant. There's never been too much the creators have been able to do about this process (except for a select few who really became BIG). And, to be truthful about it, creators need the distributors in order to have their shot at becoming BIG. Sure, they can gain traction in a geographical area, or have a following among a segment of society, or they can gather a following on the internet, but those are usually beginning steps. The distributor is needed to make them nationally or internationally renowned. On the other hand, a few years back, the consumer found himself in a situation where he didn't have to put up with as much exploitation as before.

The web brought the consumer the ability to download without cost. Someone out there would upload an item and others could download it without paying a skinny nickel. Sure, some of this had been previously available via bbs systems, but the web brought wider availability. Additionally, both technology and software increasingly made this an increasingly attractive alternative for consumers.

In other words, the artificial monopoly was broken. Artificially inflated prices led to consumers (former customers) forgoing the cost of purchasing IP items and instead downloading them without cost. This did not directly affect the creators and was crushing to the brick and mortar merchants (seen a record store chain anywhere lately? - although, to be fair the rise of Wal*Mart and Best Buy probably also helped in their demise). Yet, the conflict which developed did not involve the merchants. The conflict is between the consumer and the developers. And we all root for the consumer, the little guy, us.

Unfortunately, it's not that simple.

The industries have often reacted horribly. Whether they are acting as groups (Business Software Alliance, RIAA, MPAA, etc.) or as individual companies (Viacom) they've done things which have seemed almost insane as they've thrashed around fighting the changing market with every shred of their beings. They've pushed for repressive laws to be enacted. They've sued various consumers for much more than the damage that particular consumer could possibly have caused. They've sued companies out of existence. Sometimes the industries score victories (Napster), but generally they have been swimming against an incredibly strong tide. All of this done, as their PR spin would have it, on the behalf of the creators. Nevertheless, while at least the successful creators are along for the ride, the truth is that the distributors are looking out for their own bottom line. Eventually, although they get pushed there kicking and screaming, they all seem to try to make some accommodation.

Still, after all the poor behavior on the part of the industries, it is in the best interest of the consumer for them to continue to operate. We need movie companies making potential summer blockbusters, publishers printing books, television channels making shows, etc. and the ugly truth is that for them to make them they must make profits. The even uglier truth is that for this to happen we must pay for things.

Hopefully, later in the week I'll have time to opine as to how all this has played out / is playing out in several industries: software, music, TV, movies, books, and any others I might think of . . .

Because the Navy's Different

Sorry I didn't spot it for the 4th, but better late than never.

I Didn't Call It PiracyIt's Computer FraudIP & p2p Part 1

A couple days back, I linked to an article about a person getting convicted in federal court for being part of a ring that uploaded 700+ movies for bit torrent download and I commented on the problems with use of bit torrent to get intellectual property free of cost. This prompted a reply from John David Galt, which has prompted me to further propound upon this matter.

The real purpose of RIAA and MPAA and their efforts is to protect big established media companies from competition from independent artists and from smaller media companies that actually want to give artists their due. See Carly Simon's "sharecroppers" article in Salon.

The moguls who have gotten rich by violating artists' moral right to profit from their works should not be allowed to continue posing as defenders of those rights against a huge horde of imaginary boogeymen. (Oh, and the word for the alleged threat is "infringement", NOT "piracy".)

To begin on a lighter note, I'd like to point out that neither I nor the article linked to called the act "piracy." However, I suspect that there might be a reason that this appellation has persisted:



Just sayin'

Back to more serious consideration, in Virginia I don't think we'd call this "infringement", we'd call it computer fraud.

§ 18.2-152.3. Computer fraud; penalty.

Any person who uses a computer or computer network, without authority and:

1. Obtains property or services by false pretenses;

2. Embezzles or commits larceny; or

3. Converts the property of another;

is guilty of the crime of computer fraud.

If the value of the property or services obtained is $200 or more, the crime of computer fraud shall be punishable as a Class 5 felony (up to ten years). Where the value of the property or services obtained is less than $200, the crime of computer fraud shall be punishable as a Class 1 misdemeanor (up to 12 months).

The without authority is pretty easily established - your contract with your internet provider almost assuredly does not authorize you to download copyrighted materials and the copyright holder has not authorized you to get the property in this fashion, without paying for it. Subsection 1 does not fit. I don't see any false pretense in someone downloading something from Limewire or Bearshare (or others); they download with the intent to watch/keep. Subsection 2 does not fit. Under Virginia's common law, larceny includes a taking of property with the intent to permanently deprive the owner of possession of that property. That leaves us with subsection 3: conversion. Conversion is generally a concept dealt with in civil actions, wherein it often serves as roughly the equivalent of of larceny. However, it is not exactly the same and does not always include the elements of larceny. For instance, it does not require that the defendant take the property. See Commonwealth v. Chilton Malting Company, 1930, 154 Va. 28 (Citing favorably, Aschermann Philip Best Brewing Co., 45 Wis. 266 - leaving a door open so ice melted was conversion). Another definition is "treating another's goods as one's own." With this in mind, I think that in Virginia p2p users are guilty of computer fraud. Of course, most all of these cases would be misdemeanors and the difficulties of putting such a case together would probably keep many localities from pursuing this kind of charge. Still, I think I've established that, for my purposes it's computer fraud.

Not Yet

The Congress hasn't decided to pay off our loans yet.

Illegal to Give Away Free Movies

I know it's a relic of the old paradigm, but if you give away other people's movies over the interweb you can get yourself in felony trouble with the feds.

And, no, before anyone asks, I don't think that intellectual property should be free of checks on its distribution. I've never been a fan of the RIAA and its ilk. However, if unchecked, the natural consequence of p to p is to make intellectual property unprofitable. I suspect the industry least affected by this would be the music industry wherein the performers would probably become more of the focus rather than the production/distribution companies (money comes from concerts, not CD's). This industry is mainly fighting a rear-guard action against a paradigm shift, not a real threat to its existence.

However, the affect on things like movies, software, even such things as comic books, &cetera could be devastating. Someone has to be convinced to front not insignificant amounts of money for these things. As things currently stand they front this money with the knowledge that only a certain percentage of productions will be successful enough to make money, much less become highly profitable. What happens if unrestricted p to p means that the day after a movie hits the screen it is distributed worldwide for everyone to watch without paying a dime? Nobody invests. Movies stop being made. We get stuck having to go to playhouses or theater in the park (shudder).

Yes, I know it's an extreme scenario as things now stand. Lest I get accused of screaming things about the sky falling, let me say that I don't see this happening today or tomorrow. However, this is not because the tech's not there, it's because a lot of people have not figured out how to use the tech. In a generation or so, when everyone has grown up using computers, the situation could be quite different.

Am I a Trial Attorney Because I Seek Stress?

A while back, Mark, over at HCDL, spoke of a book about how elite performers seek stress situations and uberperform in them. The thesis of the book seems to be that certain people "balanc[e] emotion and intellect in stressful situations" while the majority fail in this endeavor. Mark extrapolates this into trial lawyers as people who seek trials (extreme situations) and elite trial lawyers as those who shine in those moments. Perhaps even more interesting is the discussion in the comments when Mark and others discuss whether this is about people being trained to react correctly or just having it in them to do so. Mark states that the book asserts it is not a matter of training.

My gut level reaction was to reject all of this out of hand. "Certainly, this does not apply to my experience." On a day to day basis I'm not the guy who goes out and bungy jumps, or 4 wheels, or sky dives, or looks for and partakes in any number of adrenaline junkie activities. I'm one of those people who is generally happy living a fairly boring life.

However, if I take a broader look at my life, there is a tension which I note in it. I have tended toward academic pursuits and for a period of time I would be in hog-heaven in a job where I could just spend weeks researching in a library and writing papers. However, I have never been able to just do this. I've always sought some sort of application along side and in conjunction with this bookwormish tendency. I joined the Army and went into Military Intelligence, learning Arabic along the way, and got sent into two combat zones and a peacekeeping mission. I went to a college (Centre) which I chose in large part because it had a reputation for "true grading" and failing people out. I chose to go to a "top twenty" law school instead of an "easier" school (which would have given me a free ride and I've been kicking myself ever since). When faced with difficulties after law school, unlike some wiser friends who took contract work and held out until they got solid civil jobs, I opened an office and started doing criminal work.

Nevertheless, I must disagree with the premise offered. It's not about seeking stress, it's about seeking challenges. Now, that may seem nitpicky because challenges will almost always involve a degree of stress. The difference is that a challenge is a sought practical application of training and preparation. In fact, it usually starts when someone seeks the proper training and preparation. Every military trains people before sending them into action. Before a lawyer can ever practice he has to either go to law school or apprentice himself to a practicing lawyer (reading for the Bar).

Mark disputes this point and refers to a story in the book wherein it is claimed that an Army Ranger on a rafting trip fell out of the boat and "because of his training and the Ranger ethos of not needing help", drowned. This is supposed to show how training can cause a person to fail.

And it is absolutely wrong. Back when I was in the Army there was a term which was used derisively everywhere I was stationed. The word? Hero. I can still remember the Drill Sergeant in basic training yelling at whomever had screwed up, "You are a no-go at this station, Heee-row!" Heroes were not loved and beloved in the Army (I suspect Marines have a similar attitude). They are the idiots which somehow never got the basic message of military training: thou shalt operate as a team. Heroes act on their own, do stupid things, seek the adrenaline rush, and get themselves - and more importantly others - killed.

The problem is that you're filling a military primarily with 18 -24 year old men. They have an abundance of testosterone and it can take a lot to reprogram the "hero" stupidity out of them. While the military does an admirable job in the vast majority of cases, there are just some who cannot get the message that operating as, and receiving the support of, a team vastly increases the chances of survival. Sadly, the Ranger in the story told in the book operated contrary to his military training and paid the price.

That's not to say all training doesn't cause any incorrect reactions. In some cases it surely does. However, that's usually in a fish out of water situation. In high stress challenges it's always going to be the people who are trained for the challenge who survive at a higher rate. Surely, Mark's training and preparation prepare him better for a manslaughter trial than a pro se defendant. They'll both face a stressful situation, but it's the training that makes the difference.

But, you say, there will always be stressful situations which people aren't prepared for. Yet, people survive these situations. I've got a one word answer for this: Luck. Or, as one of my professors put it in college, we have evolved so that different people will react to the same crisis in different ways. An extremely angry lion walks into the middle of a village catching 10 people in the town square. 2 people freeze in place, 2 people scream, two people run, two people back away while facing the lion, and 2 people attack. This variance in reaction pretty much guarantees someone is going to survive. You only hope it is your reaction that works - and there's no guarantee that the same reaction will save you each time. One time the lion may face his attackers; another time he may chase those moving away from him; a third time he may go after the person screaming her lungs out. What determines the lion's choice? The whim of the lion on that particular day. In other words, from the perspective of the villagers, Luck.

Give me a person trained to handle the challenge over a person who is relying on luck any day.

Cha Cha! It's not just a Latin Dance anymore

I just wanted to let you know about a new search service called Cha Cha. It's a peopled power search engine, which means that you either call 1-800-2CHACHA and ask a question, or text your question to CHACHA (242242) and the answer will sent back to you by text within a couple of minutes. It works like no other search engine! It's really great when you don't have easy access to the internet and you just need some quick information!

All of the questions you send to Cha Cha are answered by one of their 10,000 human guides, which means it works just like asking your friends. Best of all, it's totally free. You can use Cha Cha to get a quick legal definition or to find out the the other party in an important supreme court case, or use it just for basic state laws or codes. You can find out more at www.chacha.com

Also check out this ABA article on how to become a google master by conducting a more efficient search.