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Demystifying the ‘Honest’ Infringer

24 February 2018

From the Journal of Intellectual Property Law and Practice:

There is an intriguing paradox at the heart of online copyright infringement: while most people perceive themselves as law-abiding and honest, the practice of unlawfully downloading copyright material is widespread.

. . . .

In a recent work, Dan Ariely examined the disconnect between individual self-concepts of honesty and the propensity to engage in dishonest behaviour. In the context of intellectual property law, Ariely’s work suggests that the social acceptability of online copyright infringement, and negative perceptions of the creative industries fuel infringement. This is because people’s moral intuitions about what constitutes acceptable behaviour are shaped by the norms within their social groups, and people often rationalise dishonest behaviour as justified retribution against wrongdoers.

. . . .

Particular highlights include: exploring how to deliberately cultivate a norms-based intellectual property system, examining the potential of blockchain technology to enhance access to legal content, and investigating how to shape the architecture of the Internet to ‘nudge’ consumers to select legal content.

Link to the rest at the Journal of Intellectual Property Law and Practice

Copyright/Intellectual Property

20 Comments to “Demystifying the ‘Honest’ Infringer”

  1. There’s really no mystery.
    People download “pirate” content because:

    A- it’s readily available
    B- it’s free
    C- the Napster trials ingrained in the public lore that what is illegal is *uploading* and that nobody has been convicted solely for downloading. (That last might even be true. I don’t recall hearing of any conviction myself. Lots of out of court settlements, though.)

    So people rationalize it by saying the criminal is the uploader, not them. Any other view is ignored.

    PG almost certainly knows what laws apply to downloading but as long as the media focuses on uploading, the public will continue to rationalize it to their convenience.
    Because everybody likes free stuff.

  2. I meet a lot of younger people through my gaming, and I’m not sure it’s just greed. Where artists set up their own websites and sell direct, young people display a lot of loyalty. But they have no such loyalty towards the corporations that own traditional artists. Many/most feel the corporations ‘cheated’ on them first, therefore cheating back is justified. Think Robin Hood vs the Sheriff of Nottingham or David and Goliath.

    The whole thing is moot though as streaming has become the accepted way of consuming entertainment for that generation.

    • Rationalization of a different flavor.

      Still boils down to: “I want it. I can get it.”

      • Sometimes it’s “I want it, but I can’t get it legally so I’ll look for a pirate copy even though I’d be happy to pay for a legal version”. I suspect that quite a few people are happy to pay – unless the price is ridiculous – but have no sympathy with publishers who can’t be bothered to release something.

        I actually produced e-books of my late mother-in-laws’s four favourite titles when she (mother-in-law that is) returned my wife’s copies as she could no longer cope with paper books. I rationalised this by saying that I’d already paid for two paper copies of each – the second copies were bought for my wife when her mother kept the first ones – and I didn’t intend to release the e-books into the wild. However, I did buy the e-books when they were finally published though I’d have preferred to just send some royalties to the author.

        I will also admit to downloading e-books from fadedpage.com even though they are still in copyright in the UK; I have taken an ethical decision not to respect the term extension from 50 to 70 years after death, just like I’ve decided to rip CDs to mp3 even though this is not legal in the UK (due to a very stupid judge).

        • Scanning for personal use is not piracy.
          It is quite common and in the US explicitly authorized in certain cases. (Namely producing files for the blind.)
          It can be argued to be within the bounds of fair use.

          Sharing it with ten thousand of your closest friends, though…

  3. I wonder. Some stock image sites (the notorious Getty Images comes to mind) appropriate classic images as their own. They even make Mona Lisa available for a price.
    What rights do they have to charge money for her? What if someone used Mona Lisa, gotten elsewhere (like Wikipedia, for example) for a commercial purpose? A book cover maybe. Would they sue?
    The way I see it, Getty Images have as much rights to such images as anyone else. Mona Lisa belongs to the humanity, not Getty Images. Is it even legal what they are doing?

    • Last I heard, museums own their art and are asserting ownership of the images for commercial use. Getty might have a license from the Louvre.

      And no, it doesn’t belong to humanity for all purposes. Each new photo of the Mona Lisa is a new derivative work.

      Owners of famous buildings have asserted similar rights:


      Not cut-n-dry.

    • In the case of Getty, I suspect they took the photo. If you shot your own photo, no problem. If another photographer made their photo commonly available, okay.

      Think of how Barnes & Noble still charges money for its reprints of public domain works (Jane Austen, Frankenstein, Shakespeare). But if you went to Gutenberg and made your own version of those works, no problem. Mozart’s music is public domain, but recordings of his works aren’t. You have to either license a recording, or make your own.

      • In the case of Getty, they lost all moral standing when they tried to nail someone for infringement – who just happened to be the original photographer who had expressly released her photos to the public domain. (No, she had not had anything to do with Getty before they came after her – they had absolutely no claim to her IP.)

        I don’t think there is law on that kind of thing yet, although I do believe that a good start would be the laws about attempting to appropriate public lands.

        I agree with acflory above – most people are fed up with the stories of corporate shenanigans like this. Rapacious record companies, book publishers (especially of textbooks), MPAA overreaches. A “release the legal Dobermans” on unknowing parties that infringe trademarks.

        Now, this behavior is only exhibited by a few corporations, to be honest. But they poison the image of just about everyone else in their respective industries. (Not just IP issues – I worked at a company that had a hell of a time selling one product line into a fairly large market segment where a truly atrocious maker of a competing line had convinced everyone that anything similar was junk to be avoided.)

        • That’s bad, but a separate issue. If Getty has a photographer who takes a photo then they have the right to sell it, which was the original question.

          If another photographer takes a photo and sells it on her own (or gives it away), and Getty tries to keep her from doing it, that’s another issue entirely. It doesn’t mean Getty shouldn’t be paid for their own work (photographs); it only means they shouldn’t be interfering in other people’s business. And it sounds like they deserve to lose in that case.

          Now on the subject of honest infringements, I recall when Sony had such destructive DRM on their CDs that anyone who bought them was at risk of having their hardware not work properly. And worse, giving a skeleton key that let other malicious software infect their systems.

          I don’t blame any one who bought those discs deciding to grab a pirated version instead. I remember gamers speaking of such strategies, where they buy a game but only use the pirated version because it was safer and would work properly. I don’t see that much talk now, but in the early days, yeah. And those companies deserved it.

          In the case of textbooks, the professors bear some of the blame, too. They don’t have to assign the expensive books from companies that “update” every year by adding one or two new lines. For most subjects they could put together their own materials.

          • I think it was Getty that also went after people who’d purchased website templates that used photos from the Getty site.

            Some that were also available from other stock photo sites, and that the website template designers HAD purchased the appropriate license for, produced said license, and yet, still Getty kept mailing threatening letters to several who bought and used those templates.

            Wanted anywhere from $1k up for each photo, from each alleged “infringer” and threatened to sue if not paid.

            Pretty certain the actual photographers of those photos wouldn’t have seen much, if any, of those thousands.

          • The deliberate selling of stolen goods taints an entire business. An entire pawn shop gets shut down by law enforcement when only part of their “business model” is fencing for the local burglars. Should a major corporation be exempt from that? Why?

            Professors are indeed part of the problem with textbooks. Not all, by any means. Many have their hands tied by their superiors – State education boards, school boards, college boards of governors, curriculum administrators. These situations are all too frequently the result of campaign contributions by the publishing oligopoly – or just straight-up under the table kickbacks.

            Oh, one more thing to add to the “ethically correct” but “technically illegal” pirating list. There are some things that get tied up in the morass of the courts with a battle over IP – and are not legally obtainable for many years as a result. (Myself, I grabbed the “Reboot” series from a pirate site several years ago. Yes, I did purchase it when I became aware that legal copies were available. However, I am rather strange in that I put the very rare such thing on a tickler list to check for legal copies every so often – most people will not.)

            • I’m not clear on your first paragraph — I was not aware of Getty selling stolen property, and I don’t support their doing so if they’re into that. As far as I know; their wrongs consist of going after other people as though those people had stolen from them. Or restraining others from their trade.

              Now for your “Reboot” example, I watched “Nanoha” on YouTube when the rights were tied up after Geneon went under. As soon as ADV (I think) made it available in the States, I bought it.

              Back in the Kazaa/Morpheus/Napster days I downloaded a song for my dad, by the late Kyu Sakamato. On the grounds that: 1) the song was not available in America, and 2) Sakamoto wouldn’t see the royalties anyway, as he was killed in an infamous plane crash in the 70s. If only 2 were true I still would have bought it legally if I could have, like I do for any other dead artist. With that in mind, I see Amazon has it now! Woo-hoo, for $1.29 even. So thanks for that reminder …

              • Public domain is public property. If I cut down a tree in a Federal forest (without permission from the Forest Service), take it back to town, and sell it as firewood from my own property – I have committed theft of public property. (Along with criminal fraud. Over a certain dollar limit, felony criminal fraud.)

                If I attempt to take possession of, say, the Wizard of Oz book as my property by claiming that I have a copyright to it, sending a take down order to Project Gutenberg – I am guilty of at least attempted theft of public property, besides, again, criminal fraud. (If I succeed in browbeating them, “attempted” is no longer the modifier.)

                Getty does succeed with several of their threats based on a fraudulent claim of copyright – the photographer in the specific case fought back, but they intimidated several other people into either removing their content, or paying a fee for a “license.” They most likely would have succeeded in this case, too, except for being stupid criminals and threatening the photographer. (Something like trying to sell a stolen car back to the people you just stole it from…)

  4. I would not be surprised if brazilians were number one when the subject is copyright infringement.

    Government officials being one of the worst offenders, as they know the laws, but do it anyway. Professors of public schools infringe and help students infringe. Policeman infringe and help their sons infringe. Lawyers and prosecutors too.

    Beware when selling to brazilians, they will probably disrespect any contract.

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