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shlomi-fish-homepage / lib / docbook / 4 / xml / case-for-file-swapping-rev3.xml

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<?xml version='1.0' encoding='utf-8' ?>
<?xml-stylesheet href="docbook-css/driver.css" type="text/css"?>

<!DOCTYPE article PUBLIC "-//OASIS//DTD DocBook XML V4.1.2//EN"
"/usr/share/sgml/docbook/xml-dtd-4.1.2/docbookx.dtd"[
]>
<!-- -->
<!-- $Id$ -->
<!-- -->
<!-- $Log$ -->
<!-- -->
<!-- General reminders: -->

<article id="index">
    <articleinfo>
        <title>The Case for File Swapping</title>
        <authorgroup>
            <author>
                <firstname>Shlomi</firstname>
                <surname>Fish</surname>
                <affiliation>
                    <address>
                        <email>shlomif@shlomifish.org</email>
                    </address>
                </affiliation>
            </author>
         </authorgroup>
         <copyright>
             <year>2004</year>
            <holder>Shlomi Fish</holder>
        </copyright>
      <legalnotice id="main_legal_notice">
            <!-- Ci vis pacem -->
            <para>
<!--Creative Commons License-->
This work is licensed under the <ulink url="http://creativecommons.org/licenses/by/2.5/">Creative Commons Attribution 2.5 License</ulink> (or at your option a greater version of it).
		<!--/Creative Commons License--><!-- <rdf:RDF xmlns="http://web.resource.org/cc/" xmlns:dc="http://purl.org/dc/elements/1.1/" xmlns:rdf="http://www.w3.org/1999/02/22-rdf-syntax-ns#">
		<Work rdf:about="">
			<license rdf:resource="http://creativecommons.org/licenses/by/2.5/" />
	<dc:title>The Case for File Swapping</dc:title>
	<dc:date>2005</dc:date>
	<dc:description>An essay that explains why Internet File Swapping (using Peer-to-Peer networks, etc.) is not only moral and ethical, but also should be legal, and cannot be banned. Discusses other issues.</dc:description>
	<dc:creator><Agent><dc:title>Shlomi Fish</dc:title></Agent></dc:creator>
	<dc:rights><Agent><dc:title>Shlomi Fish</dc:title></Agent></dc:rights>
	<dc:type rdf:resource="http://purl.org/dc/dcmitype/Text" />
		</Work>
		<License rdf:about="http://creativecommons.org/licenses/by/2.5/"><permits rdf:resource="http://web.resource.org/cc/Reproduction"/><permits rdf:resource="http://web.resource.org/cc/Distribution"/><requires rdf:resource="http://web.resource.org/cc/Notice"/><requires rdf:resource="http://web.resource.org/cc/Attribution"/><permits rdf:resource="http://web.resource.org/cc/DerivativeWorks"/></License></rdf:RDF> -->
            </para>
        </legalnotice>

        <revhistory>
            <revision>
                <revnumber>1417</revnumber>
                <date>14 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Forked the text from a previous document, and starting to
                    adapt it. Tagged as CC-by 2.5
                </revremark>
            </revision>
            <revision>
                <revnumber>1422</revnumber>
                <date>21 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added a rudimentary introduction and the entire terminology
                    section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1426</revnumber>
                <date>21 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added a “Why File Swapping should be Legal?” Section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1427</revnumber>
                <date>21 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Wrote the ”About this Document” section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1428</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Wrote the “Refuting Common Arguments” section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1429</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added two more examples for why file-sharing does
                    not hurt media sales.
                </revremark>
            </revision>
            <revision>
                <revnumber>1431</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “more legal uses” section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1432</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “Reflections on Online Stores”.
                </revremark>
            </revision>
            <revision>
                <revnumber>1434</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “Conclusions”.
                </revremark>
            </revision>
            <revision>
                <revnumber>1435</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “Other Important Copyrights Issues”.
                </revremark>
            </revision>
            <revision>
                <revnumber>1436</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “more links” sub-section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1438</revnumber>
                <date>22 October 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Went over the article and corrected many problems.
                </revremark>
            </revision>
            <revision>
                <revnumber>1446</revnumber>
                <date>06 November 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “Can File Swapping Really be Stopped?” Section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1447</revnumber>
                <date>06 November 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added the “How you can Help” Section.
                </revremark>
            </revision>
            <revision>
                <revnumber>1452</revnumber>
                <date>10 November 2005</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Fixed a grammatical problem courtesy of t1ber from
                    kuro5hin.org.
                </revremark>
            </revision>
            <revision>
                <revnumber>1601</revnumber>
                <date>18 August 2006</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Added a footnote about the benevolent felons, a note
                    about “stealing from the rich and giving to the poor”,
                    a note about “The Golden Rule”, an entire setion about
                    “The Internet as an Alternative Medium of Distribution”,
                    a section about the historical perspective of copyright
                    law, some links and some corrections. Second Revision.
                </revremark>
            </revision>
            <revision>
                <revnumber>1604</revnumber>
                <date>28 August 2006</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Fixed a typo (“who” → “which”).
                </revremark>
            </revision>
            <revision>
                <revnumber>1618</revnumber>
                <date>19 November 2006</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Fixed a grammatical problem pointed by a correspondent.
                </revremark>
            </revision>
            <revision>
                <revnumber>1773</revnumber>
                <date>20 May 2007</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Corrected some errors (such as spelling, phrasing or
                    grammatical); added more discussion of why copying an
                    artwork is moral; added the merchandise way of making
                    profit, the “Pirates of the Carriben” anecdote,
                    “Don’t Download this song”, and DRM and the Sony rootkit.
                </revremark>
            </revision>
            <revision>
                <revnumber>4854</revnumber>
                <date>05 June 2011</date>
                <authorinitials>shlomif</authorinitials>
                <revremark>
                    Convert to Unicode-style quotes.
                </revremark>
            </revision>
        </revhistory>
    </articleinfo>

<section id="introduction">
    <title>Introduction</title>
    <para>
        The purpose of this article is to explain why Internet file
        swapping (of media such as music files, video files, etc.) is moral,
        ethical and should be legal. Plus, people who share files on the
        Internet or download them, must not be prosecuted.
    </para>
    <!-- TODO : write more things in the introduction. (?) -->
</section>


<section id="misleading_terms">
    <title>Debunking Some Misleading Terms</title>
    <para>
        The Human Language is primarily a tool of thought, and only afterward
        a tool of communication. As such, mutations in the meaning of words
        can affect clear thinking about issues. The issue of file swapping
        is no exception. Before we continue, allow me to explain about the
        improper validity or application of some terms.
    </para>
    <section id="term_intellectual_property">
        <title>“Intellectual Property”</title>
        <para>
            As noted by Richard Stallman, <ulink url="http://www.linux.com/archive/feature/39915">the term Intellectual property is a
                seductive mirage</ulink>. Patents, Copyrights, and Trademarks
            are not equivalent to property, not even “intellectual” one.
            Furthermore, they shouldn’t be grouped together as they are
            intended for different purposes and do different things. (And are
            treated differently according to law).
        </para>
        <para>
            Some people claim that since a copyrighted work is
            “intellectual property”, then copying it is equivalent to
            “stealing”. But that is not the case here.
        </para>
    </section>
    <section id="term_stealing_theft">
        <title>“Stealing” or “Theft”</title>
        <para>
            Copyright apologists like to say that copying a work that is
            copyrighted and was published to the public, is equivalent to
            “stealing” or “theft”. However, stealing involves taking tangible
            property without permission, and depriving the owner of one less
            instance of it. On the other hand, with a public work, we can
            make an unlimited number of copies, while not harming the original,
            and while respecting the exclusive rights of the author for his
            work. This is because we just copy it - we don’t claim it is ours.
        </para>
        <para>
            Accusing people who share or duplicate media non-commercially of
            “stealing” obscures two other forms of media-related crimes that
            are in fact stealing:
        </para>
        <orderedlist>
            <listitem>
                <para>
                    If someone has somehow gained access to my private
                    files and used it to prepare his own copies (or worse
                    delete the originals), then he has performed stealing.
                    Not of “Intellectual Property” but of actual property,
                    because the files are private and I do not wish them
                    to be inspected by someone else. And privacy must be
                    respected.
                </para>
            </listitem>
            <listitem>
                <para>
                    If someone has made an inclusive work of someone’s
                    else’s work, and claimed it was his, then it may be
                    called “stealing” of copyrights.
                </para>
            </listitem>
        </orderedlist>
        <para>
            But copying a work that was released for public consumption, can
            never be considered “stealing”. Instead it is merely “copying”,
            “swapping”, “sharing”, etc.
        </para>
    </section>
    <section id="piracy">
        <title>“Piracy”</title>
        <para>
            The term “Piracy” is very common for the action of copying files,
            either for money or free of charge. One thing that should be noted
            about it is that the original pirates were sea-faring robbers, who
            took hold of ships, stole the goods, killed the people who
            were on board, and burned the ships. It would be a bit of a
            stretch to label a 10-years-old child who duplicated a
            CD of Music or several copyrighted files to his friend, after such
            villains.
        </para>
        <para>
            I personally believe that the term “Piracy” in its applied context
            is quite harmless and is cognitively sound. However, I will not
            use the term here below.
        </para>
    </section>
    <section id="crime">
        <title>“Crime”</title>
        <para>
            If one violates the letter of the law of my country did he commit
            a crime? Not necessarily. A crime is an action that is globally
            accepted to be unethical, according to well-defined, absolute
            Ethics.
        </para>
        <para>
            People who hid saved Jews during the Nazi regime, violated the
            law that took place in their lands. But can you call them
            “criminals” with a honest face? Not at all - they were very noble
            people, who did something almost everyone would agree was an
            ethical action.
        </para>
        <para>
            Now, were people who bought Alcoholic beverages during
            <ulink url="http://en.wikipedia.org/wiki/Prohibition#United_States">the
                time the U.S.A. had alcoholic prohibition</ulink> criminals?
            Again no. The Law at this point was completely irrational, and so
            the American Government could not have prevented such
            violations, and it was a regulation that the public could not
            withstand.
            <footnote id="benevolent_felons">
                <para>
                    One correspondent to this article complained that I
                    shouldn’t have given these two examples, because one cannot
                    compare downloading files to the highly moral acts of the
                    people who hid Jews during the Nazi reign, and because the
                    Prohibition on alcohol was a starting point to the
                    American mafia.
                </para>
                <para>
                    However, this is the <ulink url="http://en.wikipedia.org/wiki/Style_over_substance_fallacy">style over substance fallacy</ulink>, where one
                    criticises the style of a writing instead of what it says.
                    My point was to bring two cases where people were acting
                    illegally yet were acting either ethically or just
                    morally, and that the Law was not on Ethics’ side in this
                    case.
                </para>
            </footnote>
        </para>
        <para>
            Similarly one cannot argue that people who violate laws that
            prohibit the non-commercial duplication of digital works are
            criminals. Just because the law is there does not necessarily
            make it a right law or a beneficial law. One can argue that these
            people are felons (or “Avaryanim” in Hebrew), but that’s
            not the same thing as a criminal.
        </para>
        <para>
            Many times in history, acts of civil disobedience proved to be
            beneficial in the long run. The classical example for it is the
            American Revolution, but there are many other examples.
        </para>
    </section>
    <section id="terms_conclusion">
        <title>Conclusion</title>
        <para>
            In one IRC conversation I had with supporters of actions against
            file sharers, I realised that while I gave a lot of arguments for
            my stance, they had nothing better to do than to repeat the same
            mantras of: “You’re stealing someone else’s (intellectual) property
            so you are a criminal.” or “You’re violating the law so you are
            a criminal.”, etc. It was obvious that their cognition was
            contaminated with the mis-interpretations of these terms, which
            caused their thoughts and speech to be mutilated as well.
        </para>
        <para>
            Thus, it is high time one eliminates all the mis-applications of
            these terms from his or her vocabulary, because they prevent
            clear thinking and growth on the matter.
        </para>
    </section>
</section>


<section id="why_file_swapping_should_be_legal">
    <title>Why File Swapping should be Legal?</title>
    <para>
        So why should file swapping be legal? Let’s examine the reasons one
        by one.
    </para>
    <section id="why_should_be_legal_not_a_crime">
        <title>It is not a Crime</title>
        <para>
            The primary reason why file swapping should be legal is because
            it’s not a crime, at least not an ethical one. Sites or services
            that point to where to download the content are just referencing
            the presence of the information. Referencing or linking is
            <emphasis role="bold">never</emphasis> a crime. It’s like
            instructions on actions like how to prepare bombs, where to find
            illegal drugs,
            how to cheat various systems, or where to find stolen goods.
            By itself this information is not a crime to know, because it’s
            protected speech. So does pointing to a copyrighted resource.
        </para>
        <para>
            So now we’re left with the question whether sharing a copyrighted
            work (or downloading it) is an objectively criminal action. The
            answer is again “no”. It’s not a crime since the originator of
            a copyrighted work that was made public cannot prevent
            non-commercial copies from being made and distributed. As of today,
            many countries passed such laws, but these laws are unethical.
            Sharing of copyrighted work is common-place, and many of the
            people who do it (including many children) do not feel they’re
            doing something wrong, or feel guilty about it. So it is ethical,
            and moral and should be legal.
        </para>
        <para>
            Note that selling copies commercially (as in stores of pirated
            media), can be prohibited by the copyright holder. But
            non-commercial copying (from friend to friend, or via
            Peer-to-Peer services) cannot.
        </para>
        <para>
            Several respondants to early versions of this article, claimed
            that I should <emphasis role="bold">prove</emphasis> that copying
            or receiving a copy of an artwork that was released to the public
            is ethical and moral. Well, I’d like to ask those critics
            “Why it is not moral?”. And they’ll probably have no answer.
        </para>
        <para>
            According to <ulink url="http://www.shlomifish.org/philosophy/obj-oss/obj-oss/two_levels_of_morality.html">the definition of Ethics and Morality
                that I accept</ulink> (presented there as
            “Constitutionalitty and  Beneficiality”), then file sharing is
            ethical, because it does
            not involve an initiatory force, threat of force or fraud against
            one’s property, which as I demonstrated here does not include
            the so-called “intellectual property”. Moreover, it is also moral
            or at least ammoral, because it does not harm or prevent the
            filling of human biological needs.
        </para>
        <para>
            Copyrights are not an absolute “nature-given” right like the rights
            for life and freedom. Instead, they are a state-enacted monopoly
            that is meant to protect the originators of artworks from
            abuse by commercial distributers. However, due to the computers
            and Internet revolutions, it makes no sense to try and prevent
            non-commercial digital distribution of them.
        </para>
    </section>
    <section id="why_should_be_legal_other_ways_to_make_money">
        <title>There are other ways to make money</title>
        <para>
            There are many other ways in which originators of media can make
            money even if they allow free distribution. First of all, they can
            regulate the commercial use of the works. That way, commercial
            entities (such as Music stores, online music download services,
            D.J.’s in charge-for-entrance parties and commercial radio
            stations) must pay them royalties.
        </para>
        <para>
            Another financial option is to restrict derivation of
            the work. That way, persons who wish to build upon the work
            or include substantial parts of it in their own must consult the
            originator.
        </para>
        <para>
            Another option (of less substance) is to require attribution for
            the originator. That way, people who wish to build upon a work
            without crediting the originator must purchase permission from
            him.
        </para>
        <para>
            These three methods together give enough options for an artist
            to make money off his art, without restricting non-commercial
            copying.
        </para>
        <para>
            This is naturally excluding live performances of artists of
            various sorts, like Rock concerts, that are also a huge potential
            source of revenue, as well as sales of Merchandise. <ulink
                url="http://www.strategy-business.com/press/16635507/9095">The Grateful
                Dead made more money on merchandise than they ever did on
                selling records</ulink>.
        </para>
    </section>
    <section id="why_should_be_legal_not_hurt_media_sales">
        <title>File Sharing Does not Hurt Media Sales</title>
        <para>
            Many people erroneously believe that file sharing hurts media
            sales. However, there is a lot of evidence to the contrary:
        </para>
        <orderedlist>
            <listitem>
                <para>
                    <ulink url="http://it.slashdot.org/article.pl?sid=05/07/13/2317247&amp;tid=141&amp;tid=218">Legal Music Downloads Increase in 2005</ulink>
                </para>
            </listitem>
            <listitem>
                <para>
                    <ulink url="http://slashdot.org/article.pl?sid=04/01/04/0049249">Slashdot Article about CD-R’s and MP3s not hurting record sales in Australia</ulink>
                </para>
            </listitem>
            <listitem>
                <para>
                    <ulink url="http://195.128.176.201/Article.jpg">CD Sales in Israel went up by 15% in 2004.</ulink>
                </para>
            </listitem>
            <listitem>
                <para>
                    <ulink url="http://www.washingtonpost.com/wp-dyn/content/article/2005/03/26/AR2005032600104.html">Success
                        of the single “No Meaning No” by
                        Chuck D and the Fine Arts Militia</ulink> that was
                    released under a liberal
                    <ulink url="http://www.creativecommons.org/">Creative
                        Commons</ulink> license, that allows free distribution.
                </para>
            </listitem>
            <listitem>
                <para>
                    The U.S. band
                    <ulink url="http://en.wikipedia.org/wiki/Wilco">Wilco</ulink>
                    released their album <ulink url="http://en.wikipedia.org/wiki/Yankee_Hotel_Foxtrot">“Yankee Hotel Foxtrot”</ulink> as mp3s online
                    after their record label demanded they remix their songs.
                    After a different record label decided to distribute their
                    songs instead, and distributed the album, it became their
                    best-selling album, selling over 500,000 copies.
                </para>
            </listitem>
            <listitem>
                <para>
                    The Movie “Pirates of the Carribean”
                    <ulink url="http://opendotdotdot.blogspot.com/2006/07/pirates-redeeming-pirates.html">was
                        heavily “pirated”</ulink>, yet also had
                    very successful sales and was incredibly profitable.
                </para>
            </listitem>
            <listitem>
                <para>
                    Some new artists that published albums and singles
                    in recent years, have proven to be very successful
                    commercially, despite the fact that their songs are commonly
                    available for download on the Internet, via Peer-to-Peer
                    networks or otherwise.
                </para>
            </listitem>
            <!--
            TODO:
                - Add Slashdot article about growth in sales of a certain
                record label.
            -->
        </orderedlist>
    </section>

    <section id="why_should_be_legal_witch_hunt">
        <title>Media Organisations hunt File Sharers and Prosecute Them</title>
        <!--
        TODO: Add links.
        -->
        <para>
            You’ve probably all heard stories of the Media organisations’
            witch-hunt against file sharers. From suing a female 12-years-old
            honour student, to a grandpa in his 70’s, to a college player of
            American Football. They also were closing many online sites.
            In New Delhi the police gave the media companies an unlimited
            warrant to raid the houses of people suspected of media sharing.
        </para>
        <para>
            Lots and lots of “1984”-style terror. And for what? For preventing
            the supposed loss of sales by a limited private sector of the
            industry? For preventing a practically costless operation of
            distributing an mp3 that can be done by the “criminals” at the
            comfort of their homes?
        </para>
        <para>
            In a presentation he gave, Richard M. Stallman (of the Free
            Software Foundation and GNU project fame) gave another good reason
            why it wasn’t unacceptable. He said that when he was a kid in
            school, his teacher asked the children to share their sweets with
            the other  children. And now, suddenly they have to tell them
            something like “No, Tommy, don’t share your music/software/videos/etc. It’s illegal!”.
        </para>
        <para>
            What’s a child to feel in this case? Sharing is a nice
            part of living in a friendly society, and there’s no reason we
            should prevent it, or else we ourselves will become more and more
            selfish.
        </para>
    </section>


    <section id="why_should_be_legal_put_into_perspective">
        <title>Put it into Perspective</title>
        <!--
        TODO: Add links.
        -->
        <para>
            Let’s put things into perspective. What the media companies do
            is sell entertainment to people. Entertainment. They don’t save
            lives and the economy does not depend on them, as there are
            many other sources of entertainment a consumer can choose
            instead that are available independently.
        </para>
        <para>
            The worst case (and extremely unlikely) scenario is that no-one
            pays for online media, and everybody just share and download music
            from the Internet. Would that be a bad scenario? No, the world
            will go on. Without people making money off selling media, but
            nevertheless.
        </para>
    </section>
</section>

<section id="refuting_common_arguments">
    <title>Refuting Common Arguments against File Swapping</title>
    <para>
        This section aims to refute some common arguments against file
        swapping.
    </para>
    <section id="refuting_common_arguments_domino_effect">
        <title>The Domino Effect</title>
        <para>
            Some people are using “the Domino Effect” as an argument that file
            swapping should be stopped. What they say is that if the
            profitability of the Music industry would be harmed, then it will
            cause an economical chain-reaction that may devastate the rest
            of the economy, because other dependent industries may be harmed.
        </para>
        <para>
            There are two problems with this argument. The first is that there
            is no evidence that the profitability of the music industry is
            harmed due to file swapping, so there is little risk of this
            happening. The other is that assuming that would happen, it won’t
            be a bad thing. That’s because we essentially reduce the money
            that is transferred to a heavy taxer, and make the public, as a
            whole, richer. The public in turn, can spend this money on other
            merchandise, and make other industries as a whole more
            prosperous. This is similar to reducing income tax, while laying
            off some government workers.
        </para>
    </section>

    <section id="refuting_common_arguments_anarchy">
        <title>Violating the Law against File Swapping will Cause
        Anarchy</title>
        <para>
            Some people say that if the law of a country prohibits sharing
            files, then this law must be obeyed, because otherwise there
            will be anarchy. However, one must understand that if certain
            laws are irrational, they cannot be practically expected to
            be obeyed.
        </para>
        <para>
            I also personally don’t see how assuming everyone share files
            online, the integrity of a country will be harmed. Sharing files
            does not involve killing people, stealing from them, nor does it
            involve force, threat of force or fraud.
        </para>
        <para>
            20% of Americans enjoy file swapping, and yet the United States
            is functioning perfectly fine, and no anarchy is in sight.
        </para>
    </section>

    <section id="refuting_common_arguments_disobeying_traffic_laws">
        <title>Sharing Files is like Disobeying Traffic Laws</title>
        <para>
            The comparison of sharing and downloading files to disobeying
            traffic laws seems to be quite prevalent. But naturally, copying
            files does not endanger lives, nor is it actually a crime. The
            worst thing that can happen if one shares works of art, is loss
            of profit. If you disobey traffic laws, you risk the lives of
            yourself and of other people. This makes it a difference of Heaven
            and Earth in this analogy.
        </para>
    </section>

    <section id="stealing_from_the_rich">
        <title>“Stealing from the Rich and Giving to the Poor” is still
            Stealing</title>
        <para>
            Some people claim that because the main entities that will
            supposedly be harmed from making file swapping legal are media
            conglumerates, and to a lesser extent best-selling artists
            who are very rich, and those who would benefit are the poor
            everyday people, then this is a case of
            “stealing from the rich and giving to the poor.”, which is still stealing.
        </para>
        <para>
            One thing that has to be understood about the Robin Hood myth
            is that Robin Hood supposedly stole from the exploiters and
            gave to the exploited. Secondly, it’s not really true in this
            case.
        </para>
        <para>
            Copying a copyrighted work is not stealing, because the money
            that the author can charge for its commercial copying is due
            to copyright law - a civil (not criminal) contract between the
            State and the artists, in order to encourage original creation.
            However, <link linkend="term_stealing_theft">breaking this contract
                is not stealing</link>.
        </para>
        <para>
            It should be understood that record labels and other distributors
            of entertainment and non-technical media should either adapt to
            the new situation where Internet users can download such files
            for free and enjoy them, and to a greater extent contribute such
            media on their own, without much help from them, or simply perish
            as a no longer necessary establishment, that just gets in the way.
        </para>
        <para>
            This is not about stealing from the rich and giving to the poor.
            This is about cutting down the middle man.
        </para>
    </section>


    <section id="golden_rule">
        <title>The Golden Rule Argument</title>
        <para>
            A few people who criticised the article, claimed that by proposing
            that media will be free to be non-commercially copied, I’ve been
            violating <ulink url="http://en.wikipedia.org/wiki/Ethic_of_reciprocity">the
                Golden Rule</ulink>
            (“Treat others as you wish them to treat you”) as I don’t want
            copyright to be undermined for my own
            works.
        </para>
        <para>
            However, this results from two confusions. The first is the
            belief that I too will mind people re-distributing my work. However,
            I don’t have problems with that: all my work is freely
            re-distributable and a most of it is also Free Content. The second
            confusion is that I completely reject copyrights. However
            <link linkend="why_should_be_legal_other_ways_to_make_money">that’s
                not the case as I still accept that some copyright principles
                are valid.</link>
        </para>
        <para>
            So I did not violate the Golden Rule in voicing this opinion.
        </para>
    </section>

</section>

<section id="legal_uses">
    <title>Uses of File Swapping Services, which are More Legal</title>
    <para>
        Aside from gaining a copy of a file one didn’t buy, there are many
        ways to use file sharing services, that are more legitimate:
    </para>
    <orderedlist>
        <listitem>
            <para>
                Getting tracks from a misplaced CD by downloading them from
                the Internet. Alternatively some people are too lazy to find
                the CD in their collection, and instead download it from the
                Internet.
            </para>
        </listitem>
        <listitem>
            <para>
                Getting a digital recording of a file from a purchased audio
                recording like an audio cassette or a Vinyl record.
            </para>
        </listitem>
        <listitem>
            <para>
                Getting the video clip of a song one has bought. These are
                usually hard to acquire separately.
            </para>
        </listitem>
        <listitem>
            <para>
                Try before you buy.
            </para>
        </listitem>
        <listitem>
            <para>
                Sharing songs that were declared freely-distributable by their
                originators.
            </para>
        </listitem>
        <listitem>
            <para>
                Getting singles with different variations for albums that were
                purchased, especially a long time after the release of the
                singles, when they are very hard to find.
            </para>
        </listitem>
    </orderedlist>
    <para>
        Prohibiting file swapping entirely will, thus be like throwing the
        baby along with the water. Nevertheless, all of this is secondary to
        the fact that preventing the non-restricted non-commercial distribution
        of artworks is bad.
    </para>
</section>

<section id="reflection_on_online_music_stores">
    <title>Reflections on Online Music Stores</title>
    <para>
        Lately we’ve been seeing online music purchasing services such as
        <ulink url="http://www.apple.com/itunes/">iTunes</ulink>,
        <ulink url="http://www.real.com/musicstore/">Real Music Store</ulink>,
        etc. Such services are a good thing as they allow Media companies to
        make money off selling music files, while allowing users to buy and
        download their favourite songs without too much hassle.
    </para>
    <para>
        Some of these stores attempt to use one of the so-called
        “Digital Rights Management” (or “DRM”) systems, to prevent the users from
        making use of the files as is. However, since players to play the
        files are present on the users’ computers and these players can
        be reverse engineered, then this offers only fig leaf protection, and
        is just an annoyance. Online stores would do better to avoid such
        schemes altogether and just provide the plain, non-scrambled, music
        files.
    </para>
    <para>
        While online music stores are a good thing, it still doesn’t imply
        that file-swapping services like Peer-to-Peer network are
        illegitimate. There is room and legitimacy for both.
    </para>
</section>

<section id="can_it_be_stopped">
    <title>Can File Swapping Really be Stopped?</title>
    <para>
        People who fight file swapping would like to believe it can be
        stopped. But the opposite is the fact. The first part is the fact that
        there are distributed Peer-to-Peer networks, that are not controlled
        from a central place and in which search, uploads and downloads are
        not centralised.
    </para>
    <para>
        So they can say “that’s fine. We’ll log in with a fake client and find
        people who upload files are prosecute them according to their IPs”.
        Enter <ulink url="http://tor.eff.org/">Tor</ulink>, the
        anonymous Internet communication system. Within the Tor network,
        traffic to the actual Internet is trafficed to different nodes in
        the network, and everything is encrypted, so one cannot determine
        the real origin of the request. If someone uploads a file from
        a Tor node - the file may actually reside on the host of
        a completely different Tor user.
    </para>
    <para>
        The measures that copyright conglomerates have taken to try and
        stop file-sharing were appaling. From pulling out file sharing sites
        and services under legal threats, to demanding ISPs to give the
        identities of their file-sharing users (against any reasonable
        measurement of privacy), to prosecuting and harrasing file sharers.
        All of this for fighting against a non-existent loss of profits. Will
        you sell your soul to the Devil in order to make a profit of
        1.2 billion dollars instead of 1 billion?
    </para>
</section>
<section id="internet_as_alternative_medium">
    <title>The Internet as an Alternative Medium of Distribution</title>
    <para>
        Now that the Internet is becoming more and more common and more and
        more integral for life, artists should consider that instead or as
        well as publishing their artworks via traditional means, they should
        publish them online. First of all, it makes one have much better
        chances of people noticing his creations, rather than the very slim
        chances of having his song, book, or video distributed by traditional
        distributors.
    </para>
    <para>
        It is also often a way to eventually get published like that, after
        being noticed by such distributors. Let’s inspect the various venues
        for each content type.
    </para>
    <section id="internet_as_alternative_medium__music">
        <title>Music</title>
        <para>
            There are several venues for having freely re-distributable Music
            on the Internet:
        </para>
        <orderedlist>
            <listitem>
                <para>
                    <ulink url="http://garageband.com/">GarageBand.com</ulink>
                    is an online community for artists which have made some
                    tracks available online. GarageBand allows one to download
                    the music for free, rate it, review it, and link to it from
                    other places on the Internet.
                </para>
                <para>
                    From experience, I can say that a lot of the music that is
                    available there is very good.
                </para>
            </listitem>
            <listitem>
                <para>
                    <ulink url="http://ccmixter.org/">ccMixter</ulink> is
                    a Creative Commons sponsored community for sampling, mixing
                    and sharing music under licences that allow that.
                </para>
            </listitem>
            <listitem>
                <para>
                    <ulink url="http://www.magnatune.com/">MagnaTune</ulink>
                    is a records’ label which publishes artists whose music is
                    licensed under freely-redistributable licences.
                </para>
            </listitem>
            <listitem>
                <para>
                    One can distribute music using web sites and BitTorrent
                    torrents.
                </para>
            </listitem>
        </orderedlist>
    </section>
    <section id="internet_as_alternative_medium__text">
        <title>Text</title>
        <para>
            Most of the Web is text, and publishing text works that you
            wrote is possible in several ways:
        </para>
        <orderedlist>
            <listitem>
                <para>
                    <ulink url="http://en.wikipedia.org/wiki/Wiki">Wikis</ulink>
                    such as
                    <ulink url="http://www.wikipedia.org/">the
                        Wikipedia</ulink> and friends.
                </para>
            </listitem>
            <listitem>
                <para>
                    One can set up a web site for his textual works, or have
                    the PDFs downloadable via BitTorrent.
                </para>
            </listitem>
            <listitem>
                <para>
                    Weblogs and blog-comments are an increasingly popular way
                    of publishing content online. Many blog services such as
                    <ulink url="http://www.livejournal.com/">LiveJournal</ulink>,
                    or
                    <ulink url="http://www.blogger.com/start">Blogger</ulink>
                    will publish your blogs free of charge, as will many
                    community web sites.
                </para>
            </listitem>
            <listitem>
                <para>
                    Several writing or artist communities like
                    <ulink url="http://www.myspace.com/">MySpace</ulink> and
                    <ulink url="http://www.writing.com/">Writing.com</ulink>
                    accept submissions to publicise one’s artwork.
                </para>
            </listitem>
        </orderedlist>
    </section>

    <section id="internet_as_alternative_medium__images">
        <title>Images</title>
        <para>
            Images are de-facto freely distributable, and to a slightly lesser
            extent modifiable. Trying to protect the gratis use of your
            copyrighted photograph or image is becoming more and more futile.
        </para>
        <para>
            There are several images’ search engines online, and there’s also
            photos sharing communities such as
            <ulink url="http://www.flickr.com/">Flickr</ulink>.
        </para>
    </section>

    <section id="internet_as_alternative_medium__video">
        <title>Videos and Animations</title>
        <para>
            One can distribute videos and animations in the following means:
        </para>
        <orderedlist>
            <listitem>
                <para>
                    Animations using the proprietary (but de-facto standard)
                    Flash technology, or using the open
                    <ulink url="http://www.w3.org/Graphics/SVG/">
                        SVG (“Scalable Vector Graphics”)
                        technology</ulink>
                </para>
            </listitem>
            <listitem>
                <para>
                    Web sites and torrents can be used to distribute videos.
                </para>
            </listitem>
            <listitem>
                <para>
                    Video sharing sites such as
                    <ulink url="http://video.google.com/">Google
                        Video</ulink>, and
                    <ulink url="http://www.youtube.com/">YouTube</ulink>.
                </para>
            </listitem>
        </orderedlist>
    </section>

    <section id="value_of_linking">
        <title>The Value of Linking</title>
        <para>
            By having a legitimate link to a piece of content one can
            immediately enjoy and experience it. For example I can say:
<ulink url="http://www.garageband.com/song?|pe1|S8LTM0LdsaSkYVezYGA">Jenna
                Drey’s single ‘That’s What They All Say’</ulink> is very nice,
            follow the link to download it.”, or
<ulink url="http://www.shlomifish.org/Files/files/music/mp3-ogg/Austin%20Acton%20-%20Two%20Point%20Six.ogg">Austin
                Acton’s ‘Two Point Six’</ulink> is lame but still cool.”, or
            “Pearl Jam made their new single ‘Life Wasted’ freely
            distributable. <ulink url="http://www.legaltorrents.com/bit/pearl-jam-life-wasted-video.torrent">Here’s the torrent.</ulink>”. Etc. (These are all
            legitimate downloads).
        </para>
        <para>
            This is much better availability and accessibility than having to
            go to the store and buy it, or even buy it from an online store. And
            it an excellent publicity.
        </para>
        <para>
            For more information consult Paul Graham’s essays
            <ulink url="http://www.paulgraham.com/web20.html">“Web
                2.0”</ulink> and
            <ulink url="http://www.paulgraham.com/opensource.html">“What
                Business can Learn from Open Source”</ulink>.
        </para>
    </section>
</section>

<section id="dont_download_this_song">
    <title>Weird Al Yankovic’s “Don’t Download This Song”</title>
    <para>
        <ulink url="http://www.weirdal.com/">Weird Al Yankovic</ulink>,
        the famous musical comedian, has released the track
        <ulink url="http://music.download.com/weirdalyankovic/3600-10607_32-100948958.html">“Don’t
            Download this Song”</ulink> out of his album <emphasis>Straight
            outta Lynwood</emphasis>. Despite its ironic title, it is available for free download.
    </para>
    <para>
        <ulink url="http://www.com-www.com/weirdal/dontdownloadthissong.html">The
            Lyrics for the song</ulink> are illuminating the absurdity of the
        big copyright owners’ fight against file-swapping in a funny way.
    </para>
</section>

<section id="historical_perspective">
    <title>A Historical Perspective</title>
    <para>
        This section aims to give a historical perspective to why copyrighted
        work ought to be freely and non-commercially re-distributable.
    </para>
    <section id="history__ancient_times">
        <title>Ancient Times through the Middle Ages</title>
        <para>
            During ancient times (before the invention of paper, and the
            press), texts were written on stone or on animals’ hides and
            required a lot of effort to duplicate. As such, the authors
            encouraged people to copy, quote, and re-use their text, as long
            as they maintained proper attribution.
        </para>
    </section>
    <section id="history__after_press">
        <title>After the Invention of the Press</title>
        <para>
            After the Press was invented, and became cheaper, commercial
            books started to appear. Eventually copyright on texts emerged
            to make sure that:
        </para>
        <orderedlist>
            <listitem>
                <para>
                    Artists would be protected so their works will not be
                    re-printed by publishes and prints.
                </para>
            </listitem>
            <listitem>
                <para>
                    Make sure other prints won’t be able to re-print the
                    works of other publishers.
                </para>
            </listitem>
        </orderedlist>
        <para>
            At first it was applied exclusively to written works. Not to
            audio or video recording, which did not exist yet, nor to to
            melodies, pictures, videos, etc.
        </para>
        <para>
            It was decided that after a limited time when the author or his
            estate held the exclusive copyrights for the work, the work would
            be transferred to the public domain, to make sure it can be
            freely reused and manipulated by future generations. The first
            such term in the USA was 14 years with a potential extension of
            another 14 years.
        </para>
    </section>
    <section id="history__analysis">
        <title>My Analysis of This</title>
        <para>
            The
            <ulink url="http://en.wikipedia.org/wiki/Copyright_Act_of_1790">Copyright
                Act of 1790</ulink> granted the originator of a text “the
            sole liberty of printing, reprinting, publishing and vending” of
            a work. Note that it does not talk about mere duplication. Printing
            and reprinting were at the time very costly operations, produced
            works of good quality, and required a non-negligible amount of
            money to perform. On the other hand, if a person was to copy the
            work by hand, it would not have fallen under this law.
        </para>
        <para>
            Furthermore, it makes sense that now that we have the Internet that
            can “copy arbitrary blobs of data from one place to another at
            virtually no cost, in virutally no time, with virtually no
            control” (to <ulink url="http://www.boingboing.net/2004/11/06/save_canadas_interne.html">quote Cory Doctorow</ulink>), then the copyright laws
            will once again be ammended to reflect the new technological
            reality.
        </para>
        <para>
            Trying to stop such copyright “infringement” on the Internet is
            not going to be successful. And so far, it seems the Internet
            helps the originators of such works, more than it harms them.
        </para>
    </section>
</section>
<section id="conclusion">
    <title>Conclusion</title>
    <para>
        File swapping must be legal, because it’s ethical, moral, makes
        economical sense, and is otherwise beneficial for artists,
        distributors and consumers.
    </para>
    <para>
        There’s a book on my bookshelf by Ashleigh Brilliant with a very good
        title: “I Feel Much Better, Now that I’ve Given up Hope”. I think this
        is one thing the Media companies don’t understand. If they accept
        Internet File Sharing as a necessary “Evil”, they will be able to make
        the best out of the new situation. Instead, they have chosen to
        perform a large-scale witch-hunt, which does not really help prevent
        file sharing, and just makes them look like the public enemy.
    </para>
    <para>
        Once the Media companies try to fight file swapping by using lawsuits,
        or threats, then they should be fought back in order to protect the
        people’s ethical right to share songs. All laws that are passed to
        prohibit non-commercial distribution of public works, are unethical,
        and should be replaced with more reasonable laws.
    </para>
</section>

<section id="how_you_can_help">
    <title>How you can Help</title>
    <para>
        There are several ways in which you can help fight for the cause of
        protecting file swapping:
    </para>
    <orderedlist>
        <listitem>
            <para>
                Write. Write school reports, university theses, essays, news
                items and articles about this cause. Feel free to use material
                from here, or to link to it.
            </para>
        </listitem>
        <listitem>
            <para>
                Publish the art you create under a freely-distributable
                license. The <ulink url="http://creativecommons.org/">Creative
                    Commmons licenses</ulink> can give you enough protection,
                while still retaining this right.
            </para>
        </listitem>
        <listitem>
            <para>
                Link and mention this essay on your web-site, in your blog,
                in your posts to online forums, in real-life (in chats, on
                newspaper items), etc. Get people to know it.
            </para>
        </listitem>
        <listitem>
            <para>
                Write to your representatives at the government and tell them
                that you wish file swapping and all related issues to be
                legal. Don’t vote for people who fight against file swapping,
                and vote for those who do.
            </para>
        </listitem>
        <listitem>
            <para>
                Donate money, time and other resources to support the legal
                battle for file swapping.
            </para>
        </listitem>
    </orderedlist>
    <para>
        Together, we can stop this insanity faster than it will be stopped
        on its own.
    </para>
</section>

<section id="other_important_copyrights_issues">
    <title>Other Important Copyrights Issues</title>
    <para>
        This section will cover other significant copyright issues that are
        at stake today and require a struggle.
    </para>
    <para>
        The first is the lengthening of the copyright term. Recently
        <ulink url="http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act">the
            Sonny Bono Copyright Term Extension Act</ulink> that was passed in
        American congress extended the copyrights act by 20 years. One should
        note that the term was already extended several times in the past,
        since the first American copyrights law. 95 years for a copyrights
        of works of corporations is far too long, and we also risk that
        copyrights will be extended indefinitely this way. (“Forever minus a
        day”)
    </para>
    <para>
        A different issue is the <ulink url="http://www.anti-dmca.org/">Digital
            Millennium Copyright Act</ulink> (or DMCA for short). This law that
        was passed in the 90’s criminalises a lot of valid activity. It
        prohibits the writing of “circumvention devices” to bypass copyright
        protection (and some say every computer security measure, in general).
        It is actively used to threaten to remove allegedly copyrighted content
        from web sites, because they may violate it. (See
        <ulink url="http://www.boingboing.net/2004/11/06/save_canadas_interne.html">Cory
            Doctorow’s excellent essay “Save Canada’s Internet
            from WIPO”</ulink>.) It also contains a lot of other damaging
        clauses.
    </para>
    <para>
        The <ulink url="http://www.fepproject.org/">Free Expression
            Policy Project</ulink> has an excellent
        <ulink url="http://www.fepproject.org/policyreports/copyright2dvalves.html">report
            on the various issues in copyrights law in the past and
            today</ulink>. It is a very recommended read.
    </para>
    <para>
        A different issue is that of the so-called <ulink url="http://en.wikipedia.org/wiki/Digital_Rights_Management">“Digital Restrictions
            Management” measures (or DRM for short)</ulink>, which are measures
        meant to prevent the copying or ripping of digital media. Perhaps the
        most extreme form of this is <ulink url="http://en.wikipedia.org/wiki/2005_Sony_BMG_CD_copy_protection_scandal">The
            “Sony Rootkit” scandal</ulink>, in which a copyright-protection
        measure, turned out to put one’s Windows installation at risk, once the
        CD was inserted to the computer.
    </para>
    <para>
        The <ulink url="http://www.eff.org/">Electronic
            Frontier Foundation</ulink> has many resources related to
        activity against various harmful copyrights regulations.
    </para>
</section>

<section id="about">
    <title>About this document</title>
    <section id="about_copyrights">
        <title>Copyrights</title>
        <para>
        This work is licensed under the
        <ulink url="http://creativecommons.org/licenses/by/2.5/">Creative
            Commons Attribution 2.5 License</ulink> (or at your option a
        greater version of it). The CC-Attribution is almost
        Public Domain except for a requirement to make an attribution to the
        original author.
        </para>
        <para>
            It was written by <ulink url="http://www.shlomifish.org/">Shlomi
                Fish</ulink> who also holds the copyrights.
        </para>
    </section>
    <section id="about_author">
        <title>About the Author</title>
        <para>
            Shlomi Fish was born in Israel in 1977, and has lived there most of
            his life. He is a user, developer, advocate and activist of
            Open Source Software. His greatest contribution so far in this
            regard has been <ulink url="http://fc-solve.shlomifish.org/">Freecell
                Solver</ulink>, a Public Domain Library for solving games
            of Freecell and other types of Solitaire. However, he also
            <ulink url="http://www.shlomifish.org/open-source/projects/">initiated
                several other projects</ulink> and
            <ulink url="http://www.shlomifish.org/open-source/contributions/">made
                important contributions to projects he did not initiate</ulink>
            some of them very large scale.
        </para>
        <para>
            Otherwise, Fish has written <ulink url="http://www.shlomifish.org/humour/">several
                humorous novellas, stories and aphorisms</ulink>, which he
            has released online, under the CC-by or CC-by-sa licenses. He also
            wrote <ulink url="http://www.shlomifish.org/philosophy/">many
                essays and articles</ulink> as well as
            <ulink url="http://www.shlomifish.org/lecture/">material
                for presentations</ulink> which (unless specified otherwise)
            were released under the CC-by license.
        </para>
        <para>
            To conclude, if you think that “this guy attacks Intellectual
            Property so he obviously doesn’t have any significant IP of his
            own”, then this myth, in his case, cannot be farther from the
            fact.
        </para>
        <para>
            Shlomi Fish is a Jew and an Israeli by nationality, an atheist
            by faith (or lack of it) and a
            <ulink url="http://www.neo-tech.com/neotech/advantages/">Neo-Tech</ulink>
            Objectivist by ideology. As such he is a firm believer in both
            individual rights and freedoms, and freedom from oppression, as well
            as a free economy (Laissez-Faire Capitalism) that is free of
            government intervention. He also does his best efforts to live by
            the values of honesty, integrity, individualism, independent
            thought, passion, and rational self-growth.
        </para>
    </section>
    <section id="about_links">
        <title>More Links</title>
        <para>
            <ulink url="http://www.advogato.org/article/841.html">“Acting
                against anti-File-Swapping Lawsuits in Israel”</ulink> was
            an early attempt to convey this message written by me. It
            sparked <ulink url="http://www.mail-archive.com/linux-il%40cs.huji.ac.il/msg39822.html">a
                discussion at the Linux-IL mailing list</ulink> and
            <ulink url="http://mirror.hamakor.org.il/archives/discussions/05-2005/1646.html">a
                discussion at the Hamakor Discussions mailing
                list</ulink>.
        </para>
        <para>
            Glyn Moody maintains a blog titled
            <ulink url="http://opendotdotdot.blogspot.com/">opendotdotdot</ulink>
            where he talks about Open Source, Open Content, Open Access, and
            various other Internet paradigms. It is well worth reading and
            following.
        </para>
        <para>
             Finally, Wil Wheaton has <ulink url="http://interviews.slashdot.org/article.pl?sid=05/06/27/0926218&amp;tid=97&amp;tid=129&amp;tid=192&amp;tid=214&amp;tid=11&amp;tid=10a">some interesting insights in a Slashdot interview with
                 him</ulink>:
         </para>
         <blockquote>
             <para>
                 I’m no expert, but it seems like the MPAA would get a much
                 bigger return on their investment if they stopped going after
                 college students and went after the factories that turn out
                 legitimate movies by day, and switch over to pirated material
                 at night.
             </para>
         </blockquote>
    </section>
    <section id="about_acknowledgements">
        <title>Acknowledgments</title>
        <para>
            Thanks to the members of the Linux-IL and Hamakor Discussions
            mailing list for discussing an
            <ulink url="http://www.advogato.org/article/841.html">early
                incarnation of this article</ulink>.
        </para>
        <para>
            Thanks to
            <ulink url="http://www.livejournal.com/users/talash/">Talash</ulink>
            for referencing
            <ulink url="http://www.livejournal.com/users/talash/216391.html">the
                local Israeli file-swapping protection activity</ulink>.
        </para>
        <para>
            Thanks to <ulink url="http://lessig.org/">Lawrence Lessig</ulink>
            for <ulink url="http://lessig.org/freeculture/">an excellent
                related presentation called “Free Culture”</ulink> and for
            the Wilco anecdote.
        </para>
    </section>
</section>

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