So let me get this straight, Judge Tomas ‘the tit‘ Norström, is asked to take on a case where the defendants are essentially arguing that copyright law is an obsolete pile of shit that’s been rendered meaningless by the digitization of information, and he doesn’t think that being a member of “the Swedish COPYRIGHT Association” is a slight conflict of interest? WTF?

To be fair, I can understand why the tit ruled against The Pirate Bay. He’s a legal type, after all, and legal types aren’t exactly known for their deep insight into modern technology. But legal types are known for understanding conflicts of interest, bias, perceived bias, and how being in a club with the lawyers representing the plaintiffs makes you un-fucking-fit to take the case!

I hope this guy can’t walk down the street for the next five years without being egged by pissed off swedish teenagers.

11/May/2009 Update: This just keeps getting worse!

Related Entries

How the RIAA Hoodwinks the Courts, Legislature and Public
How the MPAA will make your kids into Terrorists

Early 19th Century – Intellectual property protections are created in Europe to that labors of the mind are enjoyed, for a short time, by their authors.

20th Century – Due to the logistics and cost of marketing and distributing media, music and movie creators sign over their work to publishers. Publishers get rich. Artists get a pittance.

1967 – World Intellectual Property Organization is created “to encourage creative activity, to promote the protection of intellectual property throughout the world” (from the preamble to the convention establishing WIPO)

1990s – Rise of personal computing and the Internet. Logistic complexity and cost of marketing and distributing media evaporates. Traditional publishers become obsolete.

1990s through today – Rise of collaboration, sharing, open source, remixing, etc. IP laws, particularly software patents and copyright law, cease to achieve their original purpose (to encourage innovation). IP Laws become obsolete.

1999 – Napster created.

2000 – Publishers realize they are becoming obsolete; go batshit crazy. Begin to trick artists into thinking the same way.

Summer 2001 – Publishers sue Napster into oblivion; begin diverting all remaining resources to scaring the shit out of the public by suing teenagers, senior citizens and anyone else they can intimidate for bajillions of dollars in damages those people never could have caused.

Fall 2001 – Bush/Cheiny/Rumsfeld invent “War on Terror” for the dual purposes of bankrupting the USA while enriching themselves and instituting a dictactatorship. Dictator Numbnuts then calls everyone he doesn’t like a terrorist, abducts them and imprisons them in the floating S&M dungeon we call Gauntanomo Bay. Dictator Numbnuts further labels any action he doesn’t like “terrorism” or “supporting terrorism.”

2005 – Artists like Radiohead begin realizing that publishers are obsolete, embrace the new order and begin independent online distribution.

2006 through today – Lawsuits begin to backfire. Courts begin realizing that publishers are trying to use civil courts to prosecute criminal offenses but cannot justify the damages they are seeking due technicality – they have no evidence.

2007 through today – Desperate, publishers attempt to delegate enforcement by leaning on Internet Service Providers and Universities. Harvard Law takes it personally.

2008 – Charles Nesson, Professor of Law at Harvard and Captain of the SS Fuckoff starts blasting dirty-big holes in the side of the RIAA’s Fort Bullshit.

2009 – Seeing the RIAA’s bullshit shield weakening, the MPAA realizes it’s in shit up to its collective eyeballs and decides to take radical action. The MPAA “commissions a study” (read, “pays someone to invent evidence for a pre-made conclusion”) to link piracy with terrorism.

How why do you think publishers would want to conflate piracy with terrorism? Wouldn’t that just muddy the whole issue? Yes. Yes it would. That’s how OJ got away with killing his wife, and that’s how the publishes intend to get away with screwing over artists and consumers for half a century. They are going to try to have you, yes you, declared a terrorist. They are going to use fear and stupidity to pressure prosecutors to put piracy cases on top of their lists. Then they are going to spend every dollar they can beg, borrow and steal to have you, and people like you, thrown in jail for a very long time. They are going to try to frighten the living shit out of as many people as possible so people stop downloading.

Terrorism: the systematic use of fear as a means of coercion.

Downloading movies and music is not terrorism. Using the legal system to protect your profit margin by scaring the public into changing its behavior is.

1. No Guarantees

Suppose you buy some new software, and it won’t install (Oblivion), does not work properly (SPSS), does not perform as advertised (MacSpeech Dictate), crashes constantly (Windows), suddenly corrupts its own files (Outlook) or breaks your other software (Symantec Security). Try bringing it back to the store for a refund. “Sorry Sir, we can’t issue a refund if the software’s been opened.” Giving you a replacement disc doesn’t work if it’s the software that’s broken.

2. Time Limits to Support

Where does Microsoft get off not supporting an operating system after a certain arbitrary date? They sure as hell don’t tell you this when you buy it in the first place. I’m not saying they should have to support old products forever – just that they should have to tell you how long the product will be supported when you buy it. And what if the upgrade is not technically superior to the previous version?

3. It just doesn’t work and they charge you to fix it.

Most modern software is absolute garbage. It simply does not do what it’s supposed to do. Software is full of bugs, features that are bugs in disguise, unnecessary complexity, poorly thought-out interactive mechanisms and crucial but missing functionality. Software companies fix the bare minimum, and then expect you to pay for the next version, which fixes SOME of the problems that never should have been there in the first place.

4. Nothing is Secure

Operating systems are to safes as leaky rafts are to nuclear submarines. All modern operating systems, for example, are so littered with holes that angsty teenagers can write viruses that end up costing software users millions of dollars. Most computer security is based on passwords, even though we know damn well that passwords don’t work.

Conclusion

Suppose we have a software company, say Ubersoft that makes some software, say “Doorways,” which I pay good money for. It turns out that Doorways doesn’t work very well, so I waste days of my life screwing around with it, trying to get it to work. Suppose they stop supporting it after a year, because they want me to upgrade. Suppose the “upgrade” barely even fixes half of the debilitating problems that made the original such a headache. Then suppose the system spontaneously corrupts all my family pictures and the videos of my kids, backups and all, and then, due to a well-known but unfixed security hole, someone is able to hack in, steal my identity, and subsequently make off with my life savings. If I sue the software company, I’ll get nothing.

Now suppose that instead of software, it was a new oven that had spontaneously caught fire, due to a known but unfixed electrical issue, and burned my house flat, wiping me out financially and destroying the same family heirlooms. The guys who made the oven would be on the hook for serious damages.

So why the hell aren’t the software companies responsible for the damage inflicted by their products?

Fuck ‘em. Power to the Pirate Bay.

1. What you download and how much you download are different issues.

You don’t need to snoop on what people are downloading to even out traffic. You just cap users’ bandwidths or total downloads. I have no problem having to pay more to download 100 gigs per month than someone who downloads 10 gigs a month. I don’t think anyone has a reasonable complaint against paying more for a faster connection than a slower one. This has nothing to do with net neutrality, it’s just about charging people based on usage. (Which is a topic for another post.)

HOWEVER, charging people more for 1 gig of torrent videos than for 1 gig of streaming video, on the other hand, is precisely the kind of online-freedom-destroying-shenanigans that should be punishable by public beating.

2. Throttling screws over independent ISPs.

See, Bell owns the fiber network. It doesn’t make sense to have 25 competing ISPs, all with their own fiber networks. So the little ISPs rent the bandwidth from Bell, thus providing a kind of confounded, screwed-up, pseudo-competitive environment. But Ma Bell doesn’t like competitors, and wants to go back to being a big ol’ fashion monopoly. So Bell invents throttling practices that drastically decrease the bandwidth of these little ISPs while holding prices constant to run them out of business, all the while claiming it’s in their customers best interests. Yeah, right.

3. It’s none of their damn business.

When did telecoms become the thought police? Or in this case, the data police? It’s none of Bell’s goddamn business what I choose to download. If they can’t be held, legally, as accessory to crimes committed by their users, then they have no business inspecting their users’ browsing habits. You wouldn’t stand for the UPS opening all of your packages, would you?

4. They’re infringing consumer choice.

When you pay for 5 mb/s interenet service, you should expect to get 5 mb/s, regardless of what you decide to download or when you decide to do it. I understand that speeds may decrease when the network gets overloaded, and that things slow down if you download from a slow server. But what Bell’s doing is more like: if Bell doesn’t like what you’re downloading or when you’re doing it, they impose their bullshit morals on you by slowing down your connection. If I wanted moral guidance from a monopoly I’d…. well, I don’t know what I’d do. Perhaps shoot myself for being such a fucking retard.

5. Bell’s in bed with the RIAA/MPAA

Bell is certainly coming under pressure from the recording and movie industries to help curtail unauthorized downloading. Internet throttling is a clear manifestation of Bell’s siding with these big industries over the preferences of their customers.

6. Bell didn’t ask their customers what they wanted.

Anybody who says they are doing something for their customers without asking their customers what they want is a lying sack of shit. Bell didn’t ask me what I think of their plan. Did they ask you? Didn’t think so.

Conclusion

Bell’s Bullshit Claim: We’re slowing down your downloads to improve your service.

Bell’s Hidden Agenda: We’re throttling traffic to quietly strangle our competitors so we can regain our monopoly, leach our customers for every cent we can and tighten our grip on media by decimating net neutrality. We want to control everything you see and hear so we can tell you how to think and act, and make the internet a one-way medium like TV and radio.

Edit: It’s not P2P traffic that eats all the bandwidth anyhow, it’s streaming video.

Francois writes:

“And even if such a correlation [between music downloading and profit erosion] could be demonstrated, it still would not justify bullying and threatening teenagers… [I think] the current RIAA strategy of blackmailing teenage students is … mafia-like.” (Post-press note: Francois wasn’t happy with the way I presented this – see his comment below)

Dar Al Harb writes:

“I always feel for those bastards who lost a few million. Never mind who they hurt or how they hurt in thier endevour to make millions of dollars”

These quotes exemplify a common attitude, especially prevalent in western society, that the big bad corporation deserves a little payback and should not pick on poor, helpless teenagers, students, seniors, etc. I call this the Robin Hood argument: Robin Hood isn’t a bad guy because his victims are rich and his beneficiaries are poor.

This sort of reasoning is undesirable in the context of P2P file sharing for two broad reasons.

Reason 1: The Big Bad Corporations are owned by regular people.

When someone argues that the music industry is comprised of evil, faceless corporations, they forget who owns those corporations. The owners aren’t just old white megalomaniacs; these are public companies owned by a wide variety of people. It’s not even just people who own stocks, either. Do you invest in mutual funds? retirement savings plans? bonds? exchange traded funds? other derivatives? When the big music companies lose money, it’s not just the wealthy that lose money, its also the middle class and even the poor who have directly or indirectly invested in them.

Reason 2: Poverty does not justify theft of non-essential goods.

If a penniless parent with a family on the brink of starvation steals a loaf of bread, I think many of us will forgive him or her for taking the lesser of two evils. However, music is not food, it’s entertainment, and humans generally do not need entertainment to survive. I suspect that most property crime is committed by people of limited financial means. If a guy steals your car stereo, do you want him let off the hook just because he’s poor? As a society, we do not accept poverty as a defense for crimes or wrongs against others; therefore accepting poverty as a defense for piracy would set a dangerous precedent.

Being poor may be an excuse for stealing essential items like food, but it does not justify your nephew’s 80 000 track pirated music library.

Qualifier

Please take note, I am not saying that P2P file sharing is theft, or that the Music Industry hasn’t screwed over artists for years. I’m not saying that file sharing is unethical or causes the Music Industry’s “losses,” and I am not saying that the RIAA is justified in its absurd legal behavior. All I am saying is that if the Music Industry were being victimized by downloading, the fact that the downloaders are poor while the Music Industry is rich is not a defense. It is not to dilute strong defenses by combining them with weak defenses like the Robin Hood argument.

Paul wrote:

“Saying that it’s not a loss if the person wouldn’t buy it if it weren’t available for free is like saying it’s not stealing for me to take a Ferrari without paying for it, because I wouldn’t buy it otherwise.”

On the one hand, I am in fact claiming that the RIAA does not experience a loss when someone downloads a song without paying, if that person would not have been willing to buy the song if it were not available for free. Furthermore, I agree with Paul that taking a Ferrari is stealing whether or not I would buy it otherwise. So haven’t I just contradicted my previous post? NO!

This discussion highlights the difference between tort law and criminal law, a distinction common to most developed nations. Loss is a topic under tort law; theft is a topic under criminal law. When you download a song through a P2P service, the RIAA can sue you (tort law) for losses they incurred due to your actions, while society can prosecute you (criminal law) for theft. These are distinct actions. If the RIAA sues you and wins, the RIAA gets the money. If society prosecutes you and wins, either you go to jail or society gets the money. Take a wild guess which route the RIAA is apt to take.

If the RIAA tries to sue you in tort for losses caused by your actions, they have to show that your actions in fact caused a loss. As I explained last time, the RIAA’s losses are imaginary, so they have no basis to sue you. To continue the analogy, if I break into my neighbor’s garage and steal his Ferrari, he loses the Ferrari, and can therefore sue me for his loss. If I download a song from the internet, the music industry cannot sue me because I have not caused a loss. The music industry didn’t lose the song, or income associated with it.

Whether or not downloading music constitutes theft in your country depends on how theft is defined in your criminal code, or equivalent. I’m not going to debate this, because 1) it depends on the country, and 2) the interpretation of law is best left to judges. However, I welcome a debate regarding whether downloading should be regarded as theft.

In conclusion, unauthorized music downloading may or may not be theft, depending on your country. However, unauthorized music downloading does not cause a loss to the music industry; therefore, the music industry has no legal basis on which to sue downloaders.

On to Part 3 –>

The Record Industry Association of America (RIAA) wants you to believe that unauthorized music downloads are responsible for the music industry’s recent decrease in sales and profits. It has two primary arguments (and since they made The War on Bullshit Blog, you can probably guess what I think of them…)

Individual Downloads

Its first argument runs as follows:

1. “The U.S. music industry loses more than $300 million per year to street piracy alone” (http://www.riaa.com/faq.php)
2. Peer-to-peer (P2P) downloading is way bigger than street piracy (http://www.riaa.com/faq.php)
3. Therefore, the U.S. music industry loses way more than $300 million per year to peer-to-peer downloading.

Whether this makes sense depends on how you calculate a loss. If, every time someone downloads a song, you write that up as a $1 loss, then the RIAA has a point… wait… something smells like bullshit!

A peer-to-peer download only represents a loss to the music industry if, were that download unavailable, the downloader would have made a music purchase. Furthermore, even if the downloader were to buy the song on iTunes for, say, $1, that doesn’t imply $1 profit for the music industry. Profit = Revenue – Expenses. A peer-to-peer download does not create any expenses for the music industry. Recording, manufacturing and marketing a CD does.

The RIAA is trying to hoodwink the public and lawmakers into thinking that it’s being victimized by downloading – that downloaders are stealing millions upon millions of dollars from the music industry each year. But it’s all bullshit. They can’t establish that P2P file sharing is causing their decrease in profits. This causal relationship constitutes a theory, one that can be studied scientifically. And guess what?

There is no scientifically defensible evidence that an individual P2P download affects the profits of the music industry.

At this point, individual downloaders are off the hook as far as tort law is concerned. If the RIAA cannot establish that the individual accused had the accused effect, and they can’t, there is no basis for a lawsuit. End of story. (I sure hope a few judges read this…)

File Sharing as a Social Phenomenon

However, it could be argued that while an individual downloader is not responsible for the music industry’s losses, the social phenomenon of P2P file sharing is. This could still form a basis to outlaw this fine pastime.

The argument the RIAA can draw on goes as follows:

1. Before P2P file sharing caught on, CD sales (or profits, or revenues, or whatever) were rising
2. After P2P file sharing caught on, CD sales (or profits, or revenues, or whatever) have been falling.
3. Therefore, P2P file sharing caused the fall of CD sales.

This isn’t really bullshit, it’s just false. More specifically, this is a classical logical fallacy called post hoc ergo propter hoc, a Latin phrase meaning, “after this, therefore because of this.” This is akin to saying, ‘I drank green tea before that big earthquake, therefore, drinking green tea causes earthquakes.’

There is no scientifically defensible evidence that P2P downloading as a social phenomena affects the profits of the music industry.

In fact, there is significant evidence to the contrary.

Economic study on the effect of music downloads

According to this new study: “the estimated effect of file sharing on sales is not statistically distinguishable from zero,” (p. 3). This is a formal way of saying that the authors found no causal link between P2P file sharing and industry losses.

To make this claim, the authors construct a variety of mathematical models to estimate the effect of downloading on music sales. They conclude: “Using detailed records of transfers of digital music files, we find that file sharing has had no statistically significant effect on purchases of the average album in our sample,” (p. 38) If you read the full paper, you will find that the authors cannot wholly reject a relationship between downloading and sales. This is a limitation of statistical reasoning – statistically, you can fail to find evidence of a relationship, but it’s much harder (potentially impossible) to show definitively that two variables are completely unrelated. Thus, conservatively speaking, this study indicates that, if there is an effect at all, it must be very small.

Thus, in the absence of scientifically defensible evidence to the contrary, the RIAA’s claim that music downloading is diminishing the music industry’s profits are bullshit.

On to Part 2 –>