Monthly Archives: February 2011

Today’s comment of the day is from Bob- “To put it simply, it’s much easier to reach a large audience with the App Store. This means that quality Apps that cost a buck or two (or 80p or so) will make their developers a bundle. And so-so Apps that charge $5 to try and make up the difference, won’t.

What you do see is that the big houses, like EA, charge significantly more than the independents. Are the games/Apps any better? Sometimes but not always.

I think that the competitive pressure and public opinion pressure will keep the prices fairly low. I think that the bar has been established. Any App that costs more that $2 better be a specialty App or something quite good. I’m amazed at how low the price expectations are.”

Frank Meehan is the founder of INQ. He is also responsible for the following comment- “If you go to a nightclub in any city in the world, the pretty girl has an iPhone or a BlackBerry. She doesn’t have an Android phone. She has no emotional attachment to an Android phone. It’s too complicated. It’s a geek device, it’s all wrong.”

I own an Android phone. Some guys think I’m hot. And I wouldn’t think that a man wearing an M&S suit and a corporate hairstyle would be able to judge what makes a pretty girl tick anyway. And he is making a Facebook phone. We all need one of them don’t we? Janine.

Now and again a comment appears on 247 that needs to be dragged to the front page, actually there are many every day. The following is in response to yesterday’s question of the day concerning torrents and downloading of music and films. Enjoy- “I do not consider downloading a work in a manner which infringes copyright to be stealing – stealing implies theft, and it is not theft. It’s a civil matter, which, at worst, entails a copyright owner failing to receive money which he would otherwise have received. However, if someone would not have purchased something in any case, the loss is far more theoretical – it is loss of something which he *should* have received, rather than *would* have received.

Similarly, in the vast majority of cases, copyright infringement is not “illegal” – it is an infringement of copyright, which is a tort, and not a crime. As such, it is likely *unlawful*, but not illegal – only in the most severe cases can it be a crime, and merely downloading (as opposed to uploading) is even less likely to be a crime. Fines, then, are almost impossible in respect of the average consumer’s downloading – a downloader might be targeted for a settlement (although, absent a finding of copyright infringement and an award of damages by a court, it is but a request, in the same way that anyone can request a payment from anyone else) but a rightsholder does not have any standing to issue a fine.

As Peter says, English copyright law does not provide the same fair use defence as the USA, nor the fair dealing rights enjoyed by many EU countries- the UK government has chosen not to implement the relevant parts of the Copyright Directive. However, how many people honestly feel that ripping a CD, so that they can import it into iTunes or to copy it onto their iPhone, is “stealing” that music, or else is wrong? Or ripping a purchased DVD, so it is accessible through their media server – is this “theft”? Sure, copyright law in the UK does not permit such acts, so, in the absence of a licence from the various (and numerous) rightsholders, such activities could, in theory, give rise to a claim of copyright infringement.

If one is happy to live with ripping a CD, one might justifiably ask whether downloading the content any different – and, to my mind, no it’s not – it’s simply another way of obtaining a digital copy of a work, for which the user has already purchased a copy, albeit in a different format. Where someone has *not* purchased a copy of the work in a different format, then the situation might feel different, but, from a legal point of view, under English law, little has changed – the infringement of copyright is no worse.

However, if one digs deeper, the fundamental question is perhaps why expression of an idea should give rise to a property right? Does the mere fact that someone has expended effort in doing something render it worthy of protection as *property*? The Internet has changed a lot of things – it’s made music distribution cheaper, easier, and to a wider audience – and yet it is predominantly treated as a damaging technology – perhaps, rather than increasing copyright restrictions, and making things less accessible, the balance should be redressed in the other direction, weakening copyright to make up for the numerous advantages available to rightsholders.”

I had to update this with the follow up comment from the same person. Interesting reading…

“Whilst the point that downloading a copy of a work where you already purchased a copy is no less of an infringement in the eyes of the law than downloading a copy of a work where the user has no pre-existing copy, the issue, perhaps, is less one of law, but rather one of moral positioning. In the former case, one’s downloading is self-justified on the basis that there is no harm to the rightsholder – since the user has already has a copy of the work in one format, and is most unlikely to purchase a second, duplicate copy, in another format, the infringement of copyright is, in effect, technical. Where a user does not have a copy already, the position feels slightly different – whilst there might be self-justification, it is not based on the rightsholder already being rewarded for that work – albeit not that copy of that work – by the user.

To take a real-world example, if I buy a CD from a supermarket, I buy it – personally speaking – because I want to listen to the music. Importantly, I do not want merely to play the CD – I want to be able to enjoy the music in a manner in which I choose. Thus, whilst I theoretically infringe copyright in ripping it, and placing digital copies on my media server and on my iPhone, I struggle to consider my actions as “wrong”. (There is, of course, a debate as to whether it is wrong to commit a tort, even if one disagrees with that tort – a variation on the “rule of law” and justifiability argument, but that’s out of scope here, to my mind.) However, I would not feel comfortable downloading a CD for which I did not have a physical copy, because – in most situations – it feels wrong to me. Whilst the price I am prepared to pay for music is relatively low (if a CD is more than a few pounds, I am unlikely to buy it), I still wish to make that payment, because it feels like the right thing to do. If there was no law of copyright, and no flow-down contractual rights attached a previous purchaser of a CD, such that copying was uninhibited legally, I’d likely donate to artists whose works I enjoyed – this is the model I use for supporting open source, even though payment is rarely required, or even expected. However, I would expect an artist’s revenues to decrease, although objective empirical research on this – although, of course, projected rather than evidenced – would be interesting.

Lessig, in “Free Culture” (from memory – could be one of his other books), sets out a number of other situation in which there is a believable – at least, to my mind – self-justification for infringement. Among these is the notion of trialling something – before I spend £x on a piece of software, for example, I want to see whether it can do what I need, run on my hardware etc. Not everyone provides an unfettered (but perhaps not unreasonably time-limited) demo version of their software, relying on users to “buy blind”, or else go through a refund procedure- this latter approach is fine for an individual title (I.e. The situation in which I want to see if Y software suits my needs), but is more cumbersome when one wishes to ascertain which of software A, B and C best meets one’s requirements. Similarly – although based in the “already purchased one copy” approach – is that of backups. Physical media can get scratched quite easily, or even just lost. If I have already purchased a copy, it might not feel wrong to secure another copy in the event the first is damaged- after all, if it is the copyright which is of value, rather than the physical CD itself, the copyright work is not damaged, merely my ability to listen to it, due to a flaw in the carrier.

Advanced access to works is more questionable, to my mind. Whilst the European Court held earlier this week that dividing markets on a national basis for the purpose of selling broadcast rights was a breach of European competition laws, the principle remains that a company should – within the bounds of the law – be entitled to structure its affairs in the way which it sees fit. I’d that includes releasing in s courty outside the EU before releasing within the EU, then so be it. I don’t see that, ethically, one can argue that they should have a right of access. House Season 7, for example, is already being broadcasted in the US, but will not reach the UK or a while – at least, the DVD release will not be for seven months or so, and, to me, the right thing to do is to wait, and, when the DVD reaches a price I’m prepared to pay, I’ll buy it. Then rip it.

My closing thought, though, is that maybe copyright should be viewed as a creature of its time – arising out of letters patent and royal privileges to booksellers in seventeenth century, it’s first statutory implementation in the early 18th century (Copyright Act 1709) was a massive change from the status who, reserving right to authors, not publishers. The Act, incidentally, imposed obligations on would-be copyright owners, as well as rights – obligations now lost, unfortunately. Maybe, rather than arguing that the widescale infringement of copyright is a sign for needed stronger copyright, or better enforcement, the sign is one of need for sweeping reform, even abolition, of copyright – society and technology have changed so much, that perhaps we should start again with a blank sheet of paper, and work out what is most desirable for society overall. A risk to the copyright industry, of course, is that such a change might not come out in their favour, and might not consider that maintenance of one particular business model is not a good reason for legislation – in other words, that copyright law serves a wider social purpose than mere profit entitlement by authors – oft forgotten is that this was never an aim of copyright law, but a method by which an end goal could be achieved. (See, for example, the first and second speeches of Lord Macaulay to the House of Lords in respect of copyright extension of term, in the mid-nineteenth century – beautifully written, clearly structured, and, delightfully, now in the public domain, for all to enjoy.)”