Isn’t it “fair use” if I don’t sell it?
We often hear this claim made by those sturggling aginst what they see as legal tyranny by corporate media giants attempting to pray on the little guy. The answer is “No”, it’s still infringement — but can we really blame anyone for feeling this way?
There is a difference between what is legally practical and what is morally right. That’s exactly why industry keeps pushing for laws like SOPA and PIPA (and DCMA before it). They want to make it more practical to enforce their (legitimate) right to earn a return on their investment in time and talent. That’s fine, in theory. The problem is that any law that makes enforcement easy enough to stop individual acts of infringement CANNOT HELP but open the door to rampant abuse and coercive intrusion into the free market.
Let’s be clear on this: When an artist (or a media distribution company) says it is illegal even for one person to make one copy of a protected work for their own use with no redistribution, they are right. It IS illegal AND immoral for to copy other people’s work without paying their asking price, even for only your own use (except for parody, commentary etc.). It took effort and/or talent to create the work, and if you use it without paying, you are a cheat.
However. The reality is, people have done so and are going to continue to do so, and to a great extent, that is just the cost of doing business in a free society. Attempts to lock down technology to make infringement impossible cannot succeed, because by succeeding, they would destroy the very free society that makes the production of IP economically valuable in the first place.
There is, of course, truth to the claim of materiality, that one person copying a few songs is not doing any MATERIAL harm. True. The challenge is that digital technology makes it so easy to copy that even casual, ostensibly benign infringement can erode a significant slice of the market. This is a legitimate problem, one that legitimately needs to be addressed. For my part, I think it could be better addressed through marketing and education than through legal machination.
The thing is, legal remedies to ubiquitous access always have unintended consequences. I know one fellow who acquired illegal copies of a whole slew of technical books because he needed to use them on an e-reader that did not support the digital lock placed on them by the publishers. He BOUGHT all these books, but in the process of hunting down copies he could actually use, he ran across a repository of hundreds of unsecured copies he had not previously known about. These turned out to be from a publisher who makes such books freely available to encourage people to turn to their newer releases for updates, but it also supported the very piracy sites that laws like PIPA are meant to destroy.
The reality is, no law can ever stop a free people from infringing occasionally upon one another, and society itself has mechanisms for keeping such infringement in check. Typically, people are much less likely to do what they see as being “wrong” or “uncool” according to their peer group, than what an outside aggressor prohibits by force.
By attempting to make all copying impossible, or so easily prosecutable that a police state results, the media conglomerates make insurgents of their own customers. How can that be good business?