An ethical question involving ebooks

I recently purchased a short story from Fictionwise, which was not DRM’ed, so I could easily get it into a form where I could read it on my Sony eReader. Thanks to that short story, I was introduced to an author, and a character, which I found very engaging. When I decided to find out more about the character, I found that the author had written two additional short stories, and three additional novels many years ago, but has since stopped writing any more books involving that character. Furthermore, the novels have gone out of print, and are only available from amazon.com as used books.

Unfortunately, I travel a lot. So much so, that one of the few times that I have time to read is when I’m traveling. And I really dislike having to haul dead-tree versions of my favorite novels around; they take up far too much weight and space in my carry-on luggage. Unfortunately, these out-of-print novels were published by a Neanderthal Publishing company who hasn’t made any of the books available in ebook format, DRM’ed or no. Grumpy, I searched on Internet, and found all three novels were easily available for free download — in a pirated form, of course.

Should I download them and convert them into a form which would allow me to read them on my Sony eReader? Well, according to Russell Davis, former chair (and now president of the Science Fiction Writer’s Association) of the SFWA’s Copyright Committee, “electronic infringement is theft”. From a legal perspective, I suppose that is true.   And given that as an Open Source programmer, I depend on Copyright Law to assure that my wishes as an author are upheld, it would be hypocritical for me assume that I should be able to ignore Copyright Law just because it is inconvenient.

And yet…   from a moral perspective, who has really lost anything?   The argument made by Russell Davis is that infringement is bad because it is “harming authors and author estates”.   Jerry Pournelle has indignantly proclaimed that e-piracy goes against a “specific (and very stern) Biblical injunction against stealing from widows and orphans”.   Of course, in this case, the author is still alive (and is female, although I suppose stealing from widowers would be just as bad).  Also, given that the author has publically stated she doesn’t plan to write any more books involving this character (since some of her more psychotic readers sent her death threats as a result of reading said books), the publisher is highly unlikely to re-release said novels — and if I buy used dead-tree versions of said novels, the author doesn’t receive any additional royalties.   So, then, where is the moral bright line?

  • Should I purchase a used dead-tree copy of the novel, and lug it around, inconveniencing me, causing more CO2 emissions by shipping the book to me, and in the airplane because of its added weight, as the only way I can comply with copyright law?   Furthermore, should I do this to set an example to all of the younger generations that are treating copyright law much more casually, much as essentially all drivers casually ignore the law’s dictats to not drive faster than the speed limit?  (Many have argued that the current state of affairs with respect to music and etexts and copyright law is bad because it encourages people to not respect the rule of law — I guess, as the argument goes, if people don’t respect the copyright law, what’s next?   Torturing prisoners in Guantanomo in violation of the law?  Oh, wait… too late…)
  • Should I purchase a used dead-tree copy of the novel, slice the binding off, and then run pages through a scanner and an OCR program, then spend hours reformatting it into an .LRF file so I can read it on the Sony eReader?   Would that be considered fair use?
  • What if I purchase a used dead-tree copy of the novel, but to save the time and effort of scanning the pages and correcting the OCR errors, download the pirated e-text, and convert it into an .LRF file and enjoy it on my Sony eReader?
  • What if I don’t purchase the dead-tree copy of the book, download the pirated e-text, and send a money order (so it can’t be traced) for roughly the same amount of money as the cost of the used dead-tree version of the book to the author, with a letter explaining why she was receiving this check?
  • What if I just download the pirated e-text, justifying my actions that no one is actually getting hurt my downloading the text and reading it; after all, since it is long out of print and not available from any booksellers as a new book, the author isn’t going to be getting any more royalties anyway.

Somewhere along this continuum, we’ve crossed over from the light-side to the dark-side.   Setting aside the observation that the Neanderthal attitudes and business practices of the publisher involved has made it impossible for me to legitimiately follow the law, enjoy the novels, and direct money to the author via royalty payments — what do you think is the morally correct course of action?   And why?  And if you don’t mind saying so publically, roughly what generation are you from (i.e., Baby Boomer, Gen X, Gen Y, etc.)?  I’m curious how attitudes are changing based on age, and whether folks who are currently in college might differ from those who can remember a time when the Internet didn’t exist…

Update: I’ve posted a follow-up to this post here.

Update**2: This post is starting to get more attention from writers and publishers world.   For those folks, after you get tired reading through the many comments expressing the opinion that it’s “ok to just pirate it”, you may want to skip ahead to the comments around #240-#250.  (Also see some of Charlie Stross’s comments — he’s a British Science Fiction Writer — at comments #180, #193, #198, #204, #206, etc.)  There are some much more nuanced discussions about the nature of copyright taking place later in the comment stream, and in my first (I doubt it will be the last) follow-up post.  Please jump in and participate in the discussion — and please don’t just ignore first 200 or so comments; those people are your customers, and for those who are  Gen X’ers and the Millenials, they are our future.  Participating in the discussion is better than pretending they don’t or shouldn’t exist, or trying to sic the lawyers on them like the RIAA and MPAA tried to do…

357 thoughts on “An ethical question involving ebooks

  1. RMS says:

    > Copyright law in the US does not apply to a collection of facts.
    > Copyright only applies to the details of expression of a work, details
    > that they author chose. So I would expect that copyright does not
    > apply to astronomical photographs.

    This would be an entertaining position to take to the Director :-) I’ll not be the one inviting the company lawyer to the meeting.

    A specific exposure with an astronomical camera represents a unique snapshot of the universe by a particular observer at a particular epoch from a particular point of view with particular hardware and observing conditions. This is not different from photography (digital or otherwise) for other purposes. There are at least as many degrees of freedom configuring a camera at a telescope as there are in setting up an exposure for a Hasselblad.

    Also, there are facts conveyed or implied by artistic photography. Albert Boime’s “Starry Night – A History of Matter, A Matter of History” CD-ROM from the late, lamented Voyager Company, presented a wonderful argument that Van Gogh’s painting represented the stars from a specific location on a specific night.

    Contrarily, the facts embedded in scientific imaging data require a concerted effort to unearth, and the same images used for astronomical research are used to create artistic illustrations of the heavens for the public.

    Stieglitz’s “Flatiron Building” is not the same as mine. It would be perverse to assert that a photograph of a building belonging to somebody else is copyrightable, while photographs of planets, stars and galaxies – photographs devoid of any possible conflicting ownership claims – are not.

  2. > So let me put the question directly: do you or do you
    > not
    wish to see a world where an author’s ability to set terms
    > you disagree with are simply removed?

    I don’t advocate the total elimination of copyright on works of art
    and entertainmemt, nor on works that state people’s experiences or or
    thoughts. However, everyone must have the freedom to noncommercially
    copy and redistribute any published work, because sharing is the basis
    of community and must be defended.

    See http://www.gnu.org/philosophy/misinterpreting-copyright.html,
    which I referred to before.

  3. @352 RMS

    I have read that essay, twice now. I disagree with its fundamental assumptions. But this is probably not the forum to debate those disagreements.

    It does seem clear to me me that you wish to change the contract quite a bit, without regard for other authors wishes in the matter. And that you take a rather evasive approach to saying so.

    To all: thanks for the discussion. tytso: thanks for hosting it.

  4. Author: RobS
    Comment:
    RMS says:

    > Copyright law in the US does not apply to a collection of facts.
    > Copyright only applies to the details of expression of a work, details
    > that they author chose. So I would expect that copyright does not
    > apply to astronomical photographs.

    ======================================================================
    > A specific exposure with an astronomical camera represents a
    > unique snapshot of the universe by a particular observer at a
    > particular epoch from a particular point of view with particular
    > hardware and observing conditions.

    Perhaps a court would call those creative choices of details of
    expression, but if the choice was made based on technical or
    scientific motives rather than esthetic ones, I think the “merger
    doctrine” might apply. The merger doctrine says that when the details
    of a work are determined or fixed by its practical use, they don’t
    make the work copyrightable.

    I am not a lawyer, and I won’t claim to be certain.

    > Also, there are facts conveyed or implied by artistic photography.
    > Albert Boime’s “Starry Night – A History of Matter, A Matter of
    > History” CD-ROM from the late, lamented Voyager Company, presented
    > a wonderful argument that Van Gogh’s painting represented the
    > stars from a specific location on a specific night.

    The relevant question is not “Does this work portray any facts?” but
    “Does this work contain anything BUT facts?” Van Gogh’s painting may
    portray some facts, but clearly it is full of artistic details that
    were chosen by the painter. Thus, it is certainly copyrightable
    material (though I’d expect it is in the public domain by now).

    > Contrarily, the facts embedded in scientific imaging data require
    > a concerted effort to unearth, and the same images used for
    > astronomical research are used to create artistic illustrations of
    > the heavens for the public.

    That is true, but I am not sure it is relevant.

    > Stieglitz’s Flatiron Building is not the same as mine.

    I have seen the Flatiron Building, but I do not know what you
    are referring to.

    > It would
    > be perverse to assert that a photograph of a building belonging to
    > somebody else is copyrightable, while photographs of planets,
    > stars and galaxies – photographs devoid of any possible
    > conflicting ownership claims – are not.

    In just about every legal distinction there is a gray area. I think
    we are looking at the gray area between copyrightable works and
    uncopyrightable collections of facts. I do not know where courts
    draw the line here. Perhaps based on the merger doctrine.

  5. RMS said:

    > The merger doctrine says that when the details of a work are determined
    > or fixed by its practical use, they don’t make the work copyrightable.

    That lets astronomy off the hook – few endeavors are of less practical use :-)

    > Van Gogh’s painting may portray some facts, but clearly it is full of artistic
    > details that were chosen by the painter. Thus, it is certainly copyrightable
    > material (though I’d expect it is in the public domain by now).

    “Public domain” is an interesting concept for an artifact with a market value of tens of millions of dollars. Judging by the number of replicas in tacky souvenir shops, you are certainly correct, however.

    >> Stieglitz’s Flatiron Building is not the same as mine.

    > I have seen the Flatiron Building, but I do not know what you are referring to.

    Famous photograph:

    http://www.metmuseum.org/toah/hd/pict/ho_33.43.39.htm

    I misspoke. The photographer was Edward Steichen – always get those two confused.

    > I think we are looking at the gray area between copyrightable
    > works and uncopyrightable collections of facts.

    Yes. More to my thesis (and to what you have pointed out repeatedly), “copyright” doesn’t have to be a single mechanism. Astronomers would be happy to use some other legal theory, if such were available that were fine-tuned to the public and private requirements of data incidental to scientific research. I suspect the astronomical community is not alone in relying on the “proprietary period” paradigm, for instance.

    (Not to mention things like medical records that are neither copyrightable, nor should be allowed to lightly flow into the hands of the public without overriding concerns.)

    Or to put it another way, “public domain” itself has a gray area.

  6. … but consider a commercial use case. An individual or
    corporation team designs a brand new concept for some dohickey.
    Perhaps it’s pure hardware, perhaps it’s pure software, or more
    likely these days the dohickey has elements of both. They want to
    patent it.

    This is a common misconception about the patent system — that a
    patent corresponds to a product as a whole. The system does not work
    that way.

    Normally, a patent is an imposed monopoly on using some technique.
    One product typically combines many techniques. If it is software,
    your program can combine thousnds of techniques, each of which might
    be already patented by someone else. When people understand these
    facts, they raalize how dangerous software patents are to software
    developers.

    (See http://www.gnu.org/philosophy/software-literary-patents.html.)

    So, the individual visits a lawyer with expertise in the three
    areas of copyright, patent and trademark law

    There are many other laws that a business needs to deal with: by choosing
    to mention these three, you insert the assumption that they form a
    meaningful class. That assumption then comes out in your conclusion.

    3) the belief that if copyright, patent, and trademark issues ever
    have to be discussed in the same sentence, paragraph or document,
    that they should always be referred to separately

    Not quite. What I say is that, for the sake of clear thinking, we
    should take only one of these laws as the topic at any time. To try
    to generalize between these laws is a mistake, and the general
    statememts people make about them are usually false.

    The generalization of “intellectual property” confuses people because
    they suppose that these laws do something similar. For instance, if
    people know that a copyright relates to a specific work, they suppose
    that a patent is about a specific product. That’s not so, but
    “intellectual property” leads people to assume it is so.

    If we want a broader “generic” concept that takes in copyright law,
    patent law and trade4mark law, as well as some others, I suggest the
    term “t-laws”, meaning laws with “t” in their names. This term makes
    just as much sense, since the various t-laws have as much in common as
    the various “intellectual property” laws (i.e., effectively nothing).

    The advantage of the term “t-laws” is that it does not suggest that
    the laws have something in common. So it won’t mislead.

    In the sciences, things are often named by what they
    aren’t. A quasi-stellar-object is nothing like a star.

    Confusion between quasars and stars cannot do harm to our political
    life because governments have no power to legislate about either of
    them. But they do legislate copyright law and patent law, and if we
    want those laws to be designed thoughfully, the first step is to teach
    politicians they are separate issues.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>