From Keith Law’s baseball chat today:
Does it make sense to protect static data behind a paywall and keep time-sensitive events like chats free? Even though it violates federal law, static information like a list can and will be reposted all over the place. It’s like trying to stop people from posting music files or skipping commercials on television-it’s not possible no matter what the law says.
Argument by demanding impossible perfection. You don’t have to stop the illegal activity entirely to make the law valid or sensible.
I can’t tell if Law was being willfully obtuse or if the question wasn’t clear, but the question that was asked wasn’t whether or not the law was valid or sensible; it concerned how sites determine what content will be free and what will be behind the paywall. More than a few sites put blog posts behind paywalls and leave live chats free. This strikes me as bass-ackwards. Regardless of how you feel about copyright law, it is a fact that it is easier to steal a blog post than a live event. I’m sure that there is a good explanation for why ESPN and other sites do it this way, but I’ve yet to hear it because I get answers like the one above.
While we’re on the subject, even if Law’s response was pertinent to the question, it’s still a straw man. Why? Because we’re not talking about “perfection.” It’s not remotely feasible to prevent people from reposting static content, or pirating music, or skipping commercials with their Tivo*. It’s not that the laws are imperect; they’re utterly ineffective. They’re no more effective than putting a bag full of money in the middle of the street and attaching a note that says “This belongs to Bob, please do not take it.” Stealing it is still wrong, but that doesn’t mean that Bob shouldn’t have seen it coming and maybe taken a little more care with his belongings.
Oh, and for what it’s worth, I am a paying subscriber to that site. I agree that people should support content creators even if they chose to monetize their work in unenforceable ways. I just wish they’d think it through before setting up these paywalls.
This chat really was a clunker. Law is reliably one of the most rational bloggers outside of the academic realm that you’re likely to encounter, but he whiffs several times in this one. For example:
Law Prof (New York, NY)
It’s copyright infringement, not theft (a distinction that is too often not made).
Understood, yet the reason we drop the distinction is because “infringement” doesn’t sound that bad, but people grasp that “theft” is.
So…we’re calling something by an inaccurate name because it sounds worse? I thought of a dozen or so funny examples of why this is very, very wrong, but it’s too easy and feel gratuitous to list them. Let’s just say that if calling something what it really is doesn’t have the impact you want, then maybe the problem doesn’t lie with the audience.
Less egregious but still off-base, he responds to a question about copying his paywall-protected work with attribution:
What if people credit you for the content?
That would still be illegal. Even copying an article and pasting it into an email is illegal. I’m not saying copyright laws are perfect, but they exist and I don’t know of any good argument for breaking them.
This is only partially true, but, more to the point, it’s a red herring argument. Copyrighted material cannot be freely distributed regardless of whether or not it is behind a paywall. In addition, there are fair use exceptions to the law in question. You can, for example, paste the entire work into an e-mail that you send to yourself for later use. And, c’mon, quit with the straw man “perfect” claim. No one is suggesting the laws need to be perfect. They’re utterly ineffective. That’s a very different standard.
I’m not going to argue that breaking copyright laws is a good thing. I will argue that they are an archaic construct from the days when production, distribution, and reproduction of content was difficult and expensive. Monopolies on production and distribution were easier to enforce, and copyright infringement was less pervasive and easier to stop and prosecute.
Now, though? Posting something online for free is like leaving a bag in the middle of the street. Putting it behind a paywall is akin to taping the bag shut with a single strip of tape. Copying and redistribution are still wrong, but they’re going to happen because they’re trivially easy and utterly impossible to stop. Expecting me to spend my tax dollars (and and I never, ever thought I’d make that particular claim) to protect your unsustainable business model is selfish and it needs to stop.
Now that I’ve gone around and around with this, I’d like to point out that this all started with a question as to what would be a better way to organize a “freemium” site, not a claim that “stealing is wrong.” The fact that the discussion got moved into something else entirely is an indication of just how far off his game he was.
* Really? Skipping commercials with Tivo is the same as stealing content? Yes, it is exactly the same. You’re
choosing to bypass the means by which the creator has chosen to monetize their work, even if those means are archaic and unenforceable. Same thing, at least from a moral standpoint.