As the Secret Torrent Download Crisis Wars continue, it occurred to me this is a legal area that most of the people in the discussion aren't as well-versed in as, say, local traffic laws. And as I was thinking that, I heard someone yell, "This looks like a job for Super Lawyer!" And that someone was right, so I had some communication with a Super Lawyer on the topic of what is and isn't legal with downloads, and how one of the things everyone is complaining about has to happen or everyone could lose their trademarks.
Darren S. Cahr is a partner with Drinker Biddle (that's Drinker Biddle Gardner Carton if you're in Chicago, like Darren is) and "In 2006, he was selected by his peers as one of "Illinois' Super Lawyers" for intellectual property in a survey conducted by Chicago magazine and Law & Politics magazine." That makes him, at least for our purposes, Super Lawyer. He also is an expert on how peer-to-peer (torrents to the layman) intersects with Intellectual Property law.
When you talk to, or read message board postings from, people who download comics, be it from torrents or other sources, one of the mantras you here quite often is that they later buy (or previously have bought) an actual physical issue, and they don't see anything wrong with that. The question is, if you own a physical copy of the comic, is it still illegal to download a digital copy?
"Yes," says our Super Lawyer, "just as if you own a copy of a comic book you can't simply take another copy of the same issue from a store. At least that is the position of the publishing and music industries."
And what about the other, more prevalent argument -- you've downloaded the comic, but you go back and buy the (print) collected edition when it comes out?
"Same thing," says Super Lawyer.
If you were paying attention, you would have just seen the phrase, "At least that is theposition of the publishing and music industries," and you might wonder if this is something that's actually been ruled on.
"I'm not aware of a specific case that addresses the question of whether you can download an infringing copy of a work you already own, though the principle is fairly straightforward: Under most current interpretations of the law, you cannot freely download a work, even if you already own a copy -- though whether that should be the case is another question," said Cahr. "The complexity of the issue is driven by the fact that copyright law was not designed to effectively deal with the separation of work from its physical form -- the fact that a comic can float in the ether of cyberspace and get copied infinite times by infinite people was never the idea of the folks who came up with 'copyright.' But this has been the struggle of copyright law since its inception (originally, before the printing press, an author didn't own the words he wrote, but only the physical book he created -- it was personal property. The original Statute of Anne in England was the first effort to deal with the idea that you could own the content itself. Ever since then, with the development of different ways to abstract content from physical form, the notion of proprietary ownership of creative expression has grown exponentially more complicated)."
Kind of scary that this is an area of law being conducted with the equivalent of duct tape, isn't it? We'll revisit that, but first let's return to the "is it legal" question. Another statement you run into with some frequency is that people are scanning their own copies for their personal use, and not putting them online for download. Surely that wouldn't be illegal (although there are those in the music industry that would like to see "ripping" for personal use outlawed)?
"That's correct -- scanning your own copies for your own personal use is probably not aproblem as long as you are doing it for archival purposes, or something like that (though there are ways it could become a problem, depending on what other uses you may find for your newly digitized material)," said our Super Lawyer.
Now, dear reader, I don't know about you, but I find it interesting that there are a reasonable number of people that swear up and down that downloading a comic has caused them to either start picking up the monthly issues or go buy the collected edition. I find it especially interesting when you have something like the Baen Library of free downloads and eBooks citing downloading's effectiveness as a promotional tool. Exactly what I find interesting is a successful (possibly wildly successful, depending on who you talk to) marketing tactic that is, in its original conception, an illegal activity (and even stranger when you figure that the torrent activities are inherently viral promotions, adding bang for your buck… or lack of buck, I suppose). This being a seriously grey area, did you ever wonder what an IP lawyer might say about such things?
"This is the great conundrum of the modern digital age as it applies to copyright law," offers Cahr. "The problem, however, seems to me less an issue of how IP law should be changed, and more an issue of how companies and artists choose to use their copyrights. Artists can use their copyrights in a variety of ways (see Radiohead's recent experiment with 'pay as you want' downloading, or Creative Commons experiments with copyright licensing). Like all rights holders, copyright owners need to think about the relative balance between economic harm and expanding distribution. Are there ways of encouraging 'good' free distribution of certain kinds of products without permitting wholesale copying and distribution of the entire work? Are there ways of pricing in freely downloadable items while 'making up the difference' with other products or services? Too many commentators think about copyright law as a barrier, or an obstacle, instead of thinking about it as an opportunity for creativity."
And this is a good perspective to have. A perspective that would seem to be lacking in Corporate Comix today. I'd further quote Eric Flint over at the Baen Free Library:
"1. Online piracy - while it is definitely illegal and immoral - is, as a practical problem, nothing more than (at most) a nuisance. We're talking brats stealing chewing gum, here, not the Barbary Pirates."2. Losses any author suffers from piracy are almost certainly offset by the additional publicity which, in practice, any kind of free copies of a book usually engender. Whatever the moral difference, which certainly exists, the practical effect of online piracy is no different from that of any existing method by which readers may obtain books for free or at reduced cost: public libraries, friends borrowing and loaning each other books, used book stores, promotional copies, etc.3. Any cure which relies on tighter regulation of the market - especially the kind of extreme measures being advocated by some people - is far worse than the disease. As a widespread phenomenon rather than a nuisance, piracy occurs when artificial restrictions in the market jack up prices beyond what people think are reasonable. The "regulation-enforcement-more regulation" strategy is a bottomless pit which continually recreates (on a larger scale) the problem it supposedly solves. And that commercial effect is often compounded by the more general damage done to social and political freedom."
I'd also add, as has been more or less acknowledged in the case of music downloaders and as I suspect is the case with comics, your biggest downloaders and seeders are, likely as not, above average purchases of the original material. Is it really a good idea to go after some of your more regular customers? This is slippery slope on both sides. On the other hand, there's something the torrent crowd needs to accept, that they've been screaming to the hills about, and that's the cease and desist letter. Did it occur to anyone that someone like Marvel has to send those letters to maintain their trademarks?
"Trademark law (unlike copyright law) requires you to police your rights in order to prevent your trademarks from diminishing as a source identifier to the public," our Super Lawyer tells us about a subject that actually doesn't exist in a grey area because its digital. "If you are aware of trademark infringements and don't do anything about it, you can lose your rights. That's why people send out cease and desist letters to protect their trademarks, regardless of how silly it may seem. Of course, they also do it to protect their copyrights, but as we discussed that's a more complicated issue."
So there you go, everything you wanted to know about the legal background of the torrent issues, but were afraid to ask because you didn't know whose lawyers were watching.
There exist gaps between what people think is legal, what is probably illegal (if not necessarily upheld in court – yet), and what makes sense as a solid business practice. Never mind that current law wasn't set up with these specific issues in mind. Just know that if you've been a cheeky monkey and put some illegal downloads on your site, the publisher really does have to send you a cease and desist letter. That's just how the system works.
Todd Allen is the author of "The Economics of Webcomics, 2nd Edition." He consults on media and technology issues and is an adjunct professor with the Arts, Entertainment and Media Management Department at Columbia College Chicago. For more information, see http://www.BusinessOfContent.com. Todd even did a webcomic. Sort of.