Abandonware

[Роберт]

And yeah, this entire discussion is why I don't want to see any Abandonware in High Culture. Too damn murky.

Abandonware is something that people could well have legally obtained at some point. I think that as long as people just talk about the game and not where they got it or what platform they're running it on, it would be safe.

Fair Use doctrine is not quite the same, but it has the legal idea of "if there's no commercial harm, it's okay".

My ethics on abandonware. If you do due diligence to find it for sale (decent google searches etc) and don't find anything, it's morally okay. If you EVER notice it's for sale, than your version is no longer ok. If you still want it, you should buy it. If it's too expensive for you, too bad.

[LaserGuy]

Those, with no clear legal owner and no one claiming they own it? They're.. actually okay to download, due to the way copyright law works. No one fights it, so the owner must not care, apparently.

So there's actually a peculiar window there at the beginning of computer gaming, where even though copyright laws say all this stuff should be protected, it's not because there's no one defending their claim on it.

Technically, no, this isn't true. Trademarks, if undefended, will expire. Copyright does not--it's life of the author+X (where X is approximately 50 years) regardless of whether or not the owner of the copyright ever actually attempts to defend it. Theoretically, in your example, if someone started selling Demonslayer games, and Hibiscus realised that they owned the games and wanted to make money off of it, they would be within their rights to sue, even if they hadn't challenged a claim or exercised the copyright in 30 years.

[mosc]

The entire premise that whither something is on sale or not has anything to do with copyright is utter bullshit. That makes zero sense and if you tried to write that into law it would be impossible. On sale where? How can the consumer possibly know if the product is on sale or not across the entire globe? Are you putting in some requirement that the owner must sell in a way that you see fit to keep their copyright? How can you possibly think that's reasonable! I'm sure if you called up Hibiscus bakery and offered to buy a copy of the game for $100,000,000,000 and gave half of it up front to prove you were serious, they would be more than happy to sort through the legal murk for you.

The problem is not abandonware, the problem is a copyright system that favors copyright holders to unreasonable extremes. The intent of copyright law was never to have people in the business of extending copyrights. The entire concept is contrary to the intended purpose. Copyright is required in order to encourage and protect innovation. That's the truth, and anyone who thinks that anything digital should be free to use however you want can go live on a commune. That said, there's no innovation in the market from preventing people from making a picture of Micky Mouse (may he burn in hell).

[Роберт]

The entire premise that whither something is on sale or not has anything to do with copyright is utter bullshit. That makes zero sense and if you tried to write that into law it would be impossible.

But if the purpose of a copyright is to help encourage innovation/generation of value/that sort of thing, than ethically it should be okay to violate the copyrights of abandonware. Of course it's not legal; but who cares? If the only way you can find to access it is violating the copyright, I see absolutely nothing wrong with it except for the fact that it breaks the law.

[mosc]

How does that make any sense? That's very similar to saying "if I can't find a road (not even if there is a road, just that you can't find it) between one side of your property and the other, I'll drive through it. It's your fault for not providing a road with a toll". It's like saying "If I can't buy your car, it's my right to steal it". It's like saying "if you're not selling strawberries, it's my right to go pick them from your field." I mean, I just cannot understand on any level how it is rational to totally disregard ownership due to lack of distribution. How are the two even remotely linked?

[Роберт]

How does that make any sense? That's very similar to saying "if I can't find a road (not even if there is a road, just that you can't find it) between one side of your property and the other, I'll drive through it. It's your fault for not providing a road with a toll". It's like saying "If I can't buy your car, it's my right to steal it". It's like saying "if you're not selling strawberries, it's my right to go pick them from your field." I mean, I just cannot understand on any level how it is rational to totally disregard ownership due to lack of distribution. How are the two even remotely linked?

Think about it for a few seconds.

In your examples, you're damaging something or taking something away from someone else. In the case of abandonware, there is no material harm being done when it is illegally downloaded or whatever.

Here's an example: music. You found some songs you really like that you can't purchase from anywhere (you spent 10 minutes looking on the internet for it). You copy it from a friend. Illegal? Yes. Immoral? Only in that it's breaking the law.

It would only be immoral if later you found out you could buy the album for $30 bucks and decided that was too expensive so you kept your illegal version.

[Azrael]

In your examples, you're damaging something or taking something away from someone else. In the case of abandonware, there is no material harm being done when it is illegally downloaded or whatever.

Which also happens to be the justification that gets trotted out for plain old vanilla piracy of just about anything. So why is abandonware any different?

[clockworkmonk]

edit: ninja'd
its not at all though, because intellectual property is very different than physical property. and property law kinda works like that sometimes, in that if i own property that is surrounded by your property or if I cannot access my property otherwise, you can not legally bar me from crossing your property to reach mine.

I personally have great interest in pen and paper RPGs of all types, several of which are out of print. If I can locate a physical copy, I prefer it, as i happen to like the smell-feel of books in general. But there are often cases where what I am looking for is not available in print except used at a prohibitively high cost. if the publisher would, well, print the book I would certainly buy it. Downloading them is illegal with out a doubt, but my only option in several cases if I want to see the material.

[Роберт]

In your examples, you're damaging something or taking something away from someone else. In the case of abandonware, there is no material harm being done when it is illegally downloaded or whatever.

Which also happens to be the justification that gets trotted out for plain old vanilla piracy of just about anything. So why is abandonware any different?

I'm trying to make it clear where the line is crossed. If it's commercially available, it immoral to "pirate" it. if it isn't, it's moral to pirate it IMO. For books out of print, old music, abandonware, etc.

[SecondTalon]

Technically, no, this isn't true. Trademarks, if undefended, will expire. Copyright does not--it's life of the author+X (where X is approximately 50 years) regardless of whether or not the owner of the copyright ever actually attempts to defend it. Theoretically, in your example, if someone started selling Demonslayer games, and Hibiscus realised that they owned the games and wanted to make money off of it, they would be within their rights to sue, even if they hadn't challenged a claim or exercised the copyright in 30 years.

I stand corrected.

In your examples, you're damaging something or taking something away from someone else. In the case of abandonware, there is no material harm being done when it is illegally downloaded or whatever.

Which also happens to be the justification that gets trotted out for plain old vanilla piracy of just about anything. So why is abandonware any different?

I'm trying to make it clear where the line is crossed. If it's commercially available, it immoral to "pirate" it. if it isn't, it's moral to pirate it IMO. For books out of print, old music, abandonware, etc.

How long does it have to be out of print? One year? Five? How hard do you have to search? In the case of a book, let's say the last printing was ten years ago, but Bob's Books down the corner has it. Is Sally, three towns over, justified in pirating it because she's unaware Bob's Books exist and cannot find it elsewhere?

Or, let's say I just look on the shelves at Bob's Books, but I cannot find the title. I do not know that Bob can basically turn around and order it from a company, or check his inventory and see that the Bob's Books a town over has it in stock, I just assume he doesn't have it because it's ten years old. Am I justified in pirating it?

Basically, where's the line drawn? Rich McPopularAuthor releases Book 12 of the Longass series, and all of the local bookshops sell out - am I justified in downloading it because I want it now and don't want to wait? I'm.. going out on a limb and assuming the answer is no, because I can simply wait for the next printing or whatever (as if I gave a shit about First Editions, a download wouldn't help). So how out of print does a book have to be before it's justified? Are we going with a hard limit like we do with drinking ages, or are we going with a more nuanced one regarding popularity of books and the supply in secondhand shops.

Of course, with Amazon these days pretty much damn near anything is findable on the secondhand market, so let's say there's a book that had a very limited run, and I'm looking for the paperback version that was $6.99 on it's release, and would maybe be $7.99 or $8.99 today with inflation and whatnot. But on the secondhand market, the cheapest I can find it is in the $120 range, because.. it's a rare book with a niche market. Am I justified then?

[LaserGuy]

How does that make any sense? That's very similar to saying "if I can't find a road (not even if there is a road, just that you can't find it) between one side of your property and the other, I'll drive through it. It's your fault for not providing a road with a toll". It's like saying "If I can't buy your car, it's my right to steal it". It's like saying "if you're not selling strawberries, it's my right to go pick them from your field." I mean, I just cannot understand on any level how it is rational to totally disregard ownership due to lack of distribution. How are the two even remotely linked?

Copyright law deals with the right to make copies of something. If you aren't making a copy, copyright law doesn't cover it. In all three examples you give, copyright law does not apply because those examples deal with physical property. This is why people who say "piracy is stealing" are idiots. It isn't stealing, it is copyright infringement--which is illegal, but it isn't the same thing as theft, and never has been treated as such. For example, if you paint a painting, and I sit down in front of your painting and paint a new one for myself, I've violated your copyright, but I clearly haven't stolen anything in any sense of the term--in fact, I've actually made something. Lots of things that you can do legally with a copyrighted material (like say, use pieces of it for satirical or educational purposes) similarly make no sense when applied to physical property.

[aoeu]

This is why people who say "piracy is stealing" are idiots.

I believe this is what started that meme

[Роберт]

Basically, where's the line drawn?

I'm sure you can find some areas that are in a grey area and I won't form a firm opinion of whether or not it's morally acceptable. If the copyright holder doesn't appear to be currently interested in using their copyright, I think it's okay. So you want a dvd of a movie that's still playing in theatres? Tough beans, you'll have to wait (or be immoral). It's part of the marketing scheme to milk as much money out of their product as they can, which is a good thing. If there wasn't tons of money in it, there's no way the Matrix or the LotR or (put your favourite high budget movie here) would have been created.

The rare out of print things isn't clear-cut for me, but it seems to me that if it's over an order of magnitude beyond the normal retail price, it's more of a collectors item than a book for sale because of the info. The copyright holder isn't making a profit from the sale. I'd be okay with people violating the copyright for personal use. I would NOT be okay with someone other then the copyright holder publishing the book, though.

[sourmìlk]

The difference between plain old piracy and abandonware is that if you pirate something legally being sold by the vendor, the vendor has lost a sale. With abandonware, that isn't the case. You might argue that you could find the game on Amazon, but you're not paying the vendor there, you're paying a previous owner, and a previous owner has no right to profit off the software.

[jakovasaur]

The difference between plain old piracy and abandonware is that if you pirate something legally being sold by the vendor, the vendor has lost a sale. With abandonware, that isn't the case. You might argue that you could find the game on Amazon, but you're not paying the vendor there, you're paying a previous owner, and a previous owner has no right to profit off the software.

So as long as there is no lost sale, it's OK? What if I pirate a movie that I want to see, but I have no intention of ever buying? If it wasn't available to be pirated, I simply wouldn't ever watch it. There isn't a lost sale there, is there? The copyright holders made the exact same number of sales as they otherwise would have.

[Qaanol]

monopoly

You keep using that word. I do not think it means what you think it means.

It is exactly the correct word. A monopoly exists when there is only one supplier for a certain good. In this case the good is “SimAnt” and the supplier is “The legal copyright holder”. Or, at least, if the law is being followed, that is the case. There is only one legal supplier. The law serves to punish people who try to compete as suppliers for the good. The market for legal copies of SimAnt is an artificial monopoly.

Anyways, your math and arguments fail to take into considering two things. First, that the developer worked on the software and thus deserves to be compensated for his work. If somebody decides to benefit him without compensating him because that's easier, the developer has done work for no payoff.

This is wrong on multiple levels. First, doing work does not entitle a person to compensation. A person deserves to be paid only and exactly to the extent that someone is willing to pay them. That is a basic tenet of capitalism. In order to earn money, you need to find someone who will pay you. Second, my argument explicitly did consider whether the developer deserves to be paid, and I concluded that the developer does deserve to be paid in order to incentivize the development of software.

Second, if the developer owns the property, then it is and should be his right to give it to whoever he damn well please, for any reason at all.

The property in question is information. Specifically, it is a number. The SimAnt program is a sequence of 1s and 0s that uniquely specify a non-negative integer in binary. That is the thing you are thinking about buying or downloading. The developer, in essence, wrote down a number. No one “owns” numbers. However, initially only the developer knows what the exact number he or she wrote down is. It is a secret number. When you obtain the software, someone is revealing that secret number to you. You now know what it is, as it is written out in bits on your hard drive. Let’s call the number K.

K is just a number. It is a positive integer, and no one owns numbers.. You know its binary representation, so you are one of the secret-keepers now. If there were no laws about copyrights, you could, if you wanted, freely tell the number to other people. It’s just a number after all, and you have the freedom of speech so you certainly have the right to say numbers. You have, if I may use your very own wording, the “right to give that number to anyone you damn well please, for any reason at all.”

Copyright laws say, “No, actually, you do not have the right to tell other people the secret number”. This is a restriction of your freedom of speech. That is the only thing that copyright law does—restrict freedoms.

Total gain doesn't matter. I don't know why you'd think it would. If I steal something then the net gain is $0, that doesn't mean stealing is okay.

Total gain does matter. It is not the only thing that matters, but it definitely does matter. The only valid measure of how “good” a low is, is how much better off is society with this law in place than without it, or with one of its alternatives instead. When copyright laws are well-written, they restrict freedoms in an important and beneficial manner, such that society as a whole is better off than it would be without those laws.

To do your math again, let me show you how the vendor's gain is negative:
x = value of product

This is wrong already. Products do not have intrinsic value. A product has value to a person, and almost always has a different value to different people. You may have wanted to say, “x = free-market equilibrium price of product”, or “x = pure monopoly equilibrium price of product”, or some other meaningful statement about the price charged for the product.

y = value of work divided by potential sales. Should be less than x assuming the vendor can price properly

Case 1: you pay me 10 for it
My gain = 10 - y
Your gain = x - 10
Total gain = (my gain) + (your gain) = (10 - y) + (x - 10) = x - y

Case 2: you pirate it
My gain = -y
Your gain: x
total gain = (my gain) + (your gain) = (-y) + (x) = x - y

Good, we’re on the same page here. However, y is not what you think it is. The actual relevant number is “y = marginal cost to produce one unit of the product”. If we are dealing with a physical object like a hammer, then the marginal cost to produce it will include the cost of supplies, the wages for workers to produce it, and other associated costs with producing “one extra hammer” at the factory. But when we are dealing with an information object like SimAnt, then the marginal cost to produce it is essentially zero. Making a digital copy is nearly free, certainly much cheaper than any physical manufacturing process. The cost to produce “one extra copy of SimAnt” is far less than the cost to produce “one extra toothpick” or “one extra paper clip”.

As a result, equilibrium free-market price for software is $0. Also note that, when I download the software, the infinitesimal cost y of producing a copy is borne by whoever actually made the copy, namely whoever I downloaded it from. If that was not you, then you don’t suffer any loss at all.

When you were writing your post and thinking about y, you probably were including the cost of developing the software in the first place. That is a fallacy. Those costs, just like the cost to construct a factory in the first place, are called “sunk costs”, and do not affect the marginal cost to produce the product.

The marginal cost for making a copy of existing software is essentially zero, and thus so is the equilibrium free-market price. Anyone who tells you they support a free market and oppose government regulation, but also support copyright protection, is a hypocrite. Copyright laws are solely and exclusively a government regulation that restricts the free market.

Why do such laws exist? We already covered that. They are beneficial to society. They allow developers to set prices at the monopoly level, thus recouping sunk costs from development. Without such a law, the sunk costs would discourage anyone from developing new software. That is because the barrier to entry in the market of “supplying copies of existing software” is also nearly zero, so anyone could just start undercutting the price.

Case 3: you do not purchase or download
My gain = 0 (you wouldn't have counted as a potential sale)
your gain: 0
total gain = 0

Note, though, that total gain doesn't actually matter, for reasons articulated above.[/spoiler]

As you can see, the developer's gain is negative when you pirate it. It is not free for the developer to create software, and a potential customer has no right to deny the developer of his compensation.

It is, as I mentioned, essentially zero-cost for anyone to create copies of existing software, so no one actually loses anything. However, the sum total benefit is greater when you have the software. Society as a whole prefers that the transaction, where you (meaning anyone who wants it) get the software, should occur as often as possible. In a free market, the price would go to zero because the marginal cost of manufacturing a copy of existing software is zero. Then everyone who wants the software would get it. Maximizing utility is exactly what the free market does best.

However, the free market only maximizes utility among the buyers and sellers. It does not account for good or bad effects on other people who were not involved in the transaction. In this case, we are interested in the effect of “potential future software developers decide whether or not it is worth their time and effort to develop new software”. And for that, the free-market price is too low. Of course, the monopoly price is almost certainly higher than necessary, but we can live with that for a time.

I already explained how and why we allow the temporary monopoly, as well as why it is better to have a moderately short duration for it rather than a longer one. I am not going to give you a detailed introduction to economics, although I think you would benefit from having one. I recommend that you take a course in economics when you go to college.

I will, however, explain the difference between stealing and downloading without the developer’s consent.

In actuality, there are many suppliers for a copy of SimAnt. Namely, anyone who already has a copy can easily duplicate and distribute it. After all it’s just a number, a number that we represent by the symbol K. When there is a free market, a supplier and a consumer can make a trade without any outside influence.

Suppose you have a copy of SimAnt and I want a copy of it. It costs you y (approximately zero, certainly much less than 0.02¢ if you already have a server set up for people to download SimAnt from) so you are willing to sell it for any price above y. It is worth x to me in enjoyment, so I am willing to pay any price less than x. If x>y, which is almost certain since y is nearly 0, then we can haggle for a while and then decide on a mutually amenable price c, where y<c<x. It does not matter in the abstract sense what exact value c takes, since it is in the range where we are both willing to complete the transaction. Once we have agreed on a price, we complete the transaction. You give me a copy of SimAnt, and I give you c dollars.

That is how the free market works. We agree to a transaction we are both okay with. In the case of downloading the software, if someone is offering it for free then they are okay with a price of $0. Maybe they still get value from displaying ads on their website, so they are happy to have my traffic there. Maybe they just like being helpful.

In a free market, if someone is willing to complete the transaction at a price you are okay with, then you are better off because you get something of more value to you than you spent, and they are better off because they get something of more value to them than what they spent. Both parties are better off. In the case at hand, you downloading SimAnt from wherever you can find it, you value SimAnt more than the $0 you spend for it, and whoever provided it values your traffic to their site more than the trivial amount of bandwidth it cost them to send you a copy of SimAnt. So both the buyer and seller are happy. There is no “stealing” involved—it is a standard, basic, simple, free market transaction between a willing supplier and a willing purchaser. Everyone involved in the transaction is happy with it.

But what, I hear you ask, about the developer, or whomever currently owns the rights to SimAnt? They are not directly involved in the transaction, so any effect the transaction has on them is an externality. The free market ignores externalities, and that is why regulation of the free market is necessary—to maximize total utility including externalities. What, exactly, is the externality here? Does your download benefit or harm the copyright owner? Well, no, not directly. Not in the sense that buying a pack of cigarettes harms lungs of the people who will be nearby when you smoke.

The actual harm done by you downloading SimAnt for free, is potential that, “If everyone download all software for free, making software would not be profitable so no one would do it.” Who does that harm? Well, everyone who would have benefited from that future software. So we have to weigh “The potential benefit of future software” against “The actual benefit of current software”. Notably, both of those are directly contingent upon how many people are using the software in question.

So an optimal copyright law is one that enables developers to recoup the sunk cost of software development, meaning to let them pay for overhead costs and earn a decent wage during the time of development, including within that the costs associated with the risk that the software might not take off. But the optimal copyright law also provides as few restrictions on freedoms, and as short a duration of monopoly as possible to meet the requirement that developers be able to achieve compensation.

So in short, copyright laws are anti-capitalist, and the act of downloading from a website is a standard free market transaction. However, due to externalities the free market is suboptimal for dealing with so-called “intellectual property”, and as a result copyright laws serve to regulate the market so as to increase the total benefit to society.

Regarding the actual ethics of downloading abandonware, in this case the regulations are too strong. They in fact serve to decrease total utility by denying the legal right to obtain something beneficial from a willing supplier, in a manner that is not actually conducive to incentivizing new software production. Since the law itself is wrong, I see it as an opportunity for civil disobedience. If you are willing to take a stand for your freedom of speech, for the free market, and for reducing copyright terms to a superior duration such as 10 or 20 years, and if you are willing to suffer the consequences, then you might consider intentionally violating the law in a very public manner, along with a large number of fellow demonstrators. You may go to jail for several decades, but you might eventually get the law changed to better respect everyone’s rights and better maximize total utility.

[mmmcannibalism]

The difference between plain old piracy and abandonware is that if you pirate something legally being sold by the vendor, the vendor has lost a sale. With abandonware, that isn't the case. You might argue that you could find the game on Amazon, but you're not paying the vendor there, you're paying a previous owner, and a previous owner has no right to profit off the software.

So as long as there is no lost sale, it's OK? What if I pirate a movie that I want to see, but I have no intention of ever buying? If it wasn't available to be pirated, I simply wouldn't ever watch it. There isn't a lost sale there, is there? The copyright holders made the exact same number of sales as they otherwise would have.

I would say pirating something you would never pay for is still fine ethically(entirely dependent on being honest with yourself however). A main difference is that the defense "I would never have paid for it" is something I don't think a court should uphold while I would support a court finding "there was no legal means of buying and it caused no harm" to be a valid defense.

[sourmìlk]

Monopolies are not when a single company controls the market for a single product. If that were the case, every company holding a copyright would be a monopoly.

Giving the rights to property that a person made is not anti-capitalist. It is the fundamental basis of capitalism. Your assertion that people should be able to reproduce software is completely anti-capitalist. It's socialist. It denies people the right to own property, it distributes rights to the commons. Your assertions that only marginal costs should matter when pricing is arbitrary. Your assertion that people have the right to duplicate other's property is arbitrary: one's right to freedom of speech does not extend to the ability to infringe others' right to what they own, and the uncopyrightability of the components of a product should have no bearing on the copyrightability of the product itself.

You're making assertions that result in people unable and disincentivized to sell what they've put work into. Nobody has a societal obligation to make products available for free: the foundation of capitalism is that people should be able to price products any way they want, and the market decides whether or not that's reasonable. If a vendor isn't allowed to make money off of a product for arbitrary reasons, then we have abandoned capitalism.

[SecondTalon]

No one “owns” numbers. However, initially only the developer knows what the exact number he or she wrote down is. It is a secret number. When you obtain the software, someone is revealing that secret number to you. You now know what it is, as it is written out in bits on your hard drive. Let’s call the number K.

K is just a number. It is a positive integer, and no one owns numbers.. You know its binary representation, so you are one of the secret-keepers now. If there were no laws about copyrights, you could, if you wanted, freely tell the number to other people. It’s just a number after all, and you have the freedom of speech so you certainly have the right to say numbers. You have, if I may use your very own wording, the “right to give that number to anyone you damn well please, for any reason at all.”

Copyright laws say, “No, actually, you do not have the right to tell other people the secret number”. This is a restriction of your freedom of speech. That is the only thing that copyright law does—restrict freedoms.

The freedom to duplicate information versus the freedom to profit from your labors.

You are somewhat correct in that no one owns numbers. But they do own what those numbers represent.

And, of course, if you change a number or two here or there, you go from a coherent game that runs to jack squat. One particular magic number is SimAnt. Add one or subtract one, and you have static. All numbers are basically that - almost every number is static but a few select special numbers can be interpreted in a particular way to be SimAnt. Or a .jpg of Lucy Liu, a wizard and a barbarian in an intimate situation*. The number of special numbers doesn't even register when compared to the number of numbers that are meaningless.

*Yes, there's a reference here. No, I don't consider it obscure. But if you get it, you're awesome.

When you were writing your post and thinking about y, you probably were including the cost of developing the software in the first place. That is a fallacy. Those costs, just like the cost to construct a factory in the first place, are called “sunk costs”, and do not affect the marginal cost to produce the product.

... my understanding of Software Development is.. basically contrary to this. That lots of hours are spent developing an engine which may or may not be used elsewhere, developing tools to work with that engine which.. again, may or may not be used elsewhere. You would need to approach it on a case-by-case basis currently. And.. hell, even when an engine is re-used, there's a lot of time and energy spent in seeing if the engine can be bent and broken to do what it is the developer wants to do with it. There is no Factory of software programmers sitting on their hands just waiting to program the particular wiggly bit that only they know how to program - there's teams given a goal (Make this bit wiggle) and they tweak and nudge the engine until that bit wiggles..and nothing else changes. That's development, and it takes a lot of time that often is impossible to transfer elsewhere.

It's more like every time the product line changes, the Factory owners rip out all of the existing machinery, throw it in the garbage and hire a couple of people to fabricate all new machinery in-house, then use that machinery to make the new product, tweaking it as needed... and once the product line is done, you rip out all the machinery, throw it on the garbage pile and start again.

[Soralin]

Monopolies are not when a single company controls the market for a single product.

Yes, it is.

If that were the case, every company holding a copyright would be a monopoly.

Correct, in fact, that's explicitly what they have:

http://en.wikipedia.org/wiki/Copyright_Clause

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
“ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. ”

In the US, the government allows for a time-limited monopoly, known as a copyright, or a patent, in order to provide an incentive to create such things.

[Griffin]

Uh, Sourmilk, he's right - copyright is an artificial monopoly on distribution of given creations. That's what it is - that's what it does. It's not a perfect monopoly, of course - at least, not always.

Monopolies are not when a single company controls the market for a single product. If that were the case, every company holding a copyright would be a monopoly.

From Wikipedia (and most any other source you can look up, to be honest)
"A monopoly (from Greek monos / μονος (alone or single) + polein / πωλειν (to sell)) exists when a specific person or enterprise is the only supplier of a particular commodity
...
A government-granted monopoly or legal monopoly, by contrast, is sanctioned by the state, often to provide an incentive to invest in a risky venture or enrich a domestic interest group. Patents, copyright, and trademarks are all examples of government granted and enforced monopolies. The government may also reserve the venture for itself, thus forming a government monopoly."

the freedom to profit from your labors.

One can argue this is a right - I don't think one can argue this a freedom. Contextually, it doesn't make much sense. Freedoms are things we are allowed to do, not things we are guaranteed to get. Regardless, it's clear he thinks copyright has value, and that done well it's worth the restriction on freedom.

[Qaanol]

Monopolies are not when a single company controls the market for a single product. If that were the case, every company holding a copyright would be a monopoly.

Oh crap did I miss the memo that today is opposites day?

…which is to say, “when a single company controls the market for a single product” is exactly what a monopoly is. Buy a dictionary, or check Wikipedia, or ask your dad. That company has a monopoly on that product. The conclusion of your second sentence is correct: every company holding a copyright is a monopoly on the copyrighted product. In the case of creative works, I have already explained why having that monopoly is a good thing, and why having that monopoly be temporary is even better.

Giving the rights to property that a person made is not anti-capitalist. It is the fundamental basis of capitalism. Your assertion that people should be able to reproduce software is completely anti-capitalist. It's socialist. It denies people the right to own property, it distributes rights to the commons.

Look up “capitalist” and “socialist” while you’re looking things up. A free market is capitalist. In a free market, if I have a number written on a piece of paper, I can tell that number to other people if I want to, and they can write it on their own pieces of paper if they want to. It doesn’t matter who was the “first” person to write down that number—once I know what the number is, I can do what I want with it. For the government to control the distribution of a good, whether it is milk or electricity or numbers, is in fact far closer to socialism, in that the government actively prevents a free market from existing. And again, in the case of creative works, the socialist institution of copyright protection is a good thing, up to a point.

Your assertions that only marginal costs should matter when pricing is arbitrary.

It is standard basic economic theory. Seriously, take a class in it. In a perfectly free market with no barrier to entry, when all producers have the same cost of production, the equilibrium price is the marginal cost to produce an extra unit of the good. Things get complicated for physical goods, but those assumptions all hold almost perfectly for digital copies.

Your assertion that people have the right to duplicate other's property is arbitrary: one's right to freedom of speech does not extend to the ability to infringe others' right to what they own, and the uncopyrightability of the components of a product should have no bearing on the copyrightability of the product itself.

Which things count as “property” and which do not, is entirely the result of the implicit social contract we codify as laws. In other words, whether or not “intellectual property” is a thing whatsoever—whether is it possible to “own” a number—stems entirely and directly from whether the laws say it is.

Imagine living in a country where there are no copyright laws. Where “intellectual property” does not exist. Here, the fact that I was the first person to write down a particular number, does not make me “own” that number. The fact that I wrote a book, does not make me “own” the words in it.

In this imaginary country, there are still “normal” property rights for physical goods. If I write a book, I own the physical copy of the book. If I sell you a book, you own the physical copy of the book I sold you. No one owns the words in the book, so you can copy the words into another book of your own, and now you own two books containing the words I wrote. You can sell them if you like.

When you copy the words from the book you own, into the other bok you own, at no time did you “duplicate” anyone else’s property. You only modified your own property, so it matches another piece of your own property. The things you own are the books. The words are just decorations, and you are free to decorate your own property as you like.

(Aside: can you imagine a country where people are *not* free to decorate their own property? Where the government says, “No, you cannot paint the walls of your room a different color, they must stay beige.”?)

The imaginary country with no concept of “intellectual property” recognizes only real, physical property rights. Once you own a physical object, it is yours to do with as you please. That is what “ownership” is all about.

You can probably see why people in that country would not write a lot of books: after I write a book and sell you a copy, you can make your own copies and sell them. Since in this country only physical objects can be owned, you are entirely within your rights to modify the objects you own so that they become books containing the words I wrote, then sell those books.

I do not get “hurt” by you doing so, I simply do not get to sell many books, because anyone who wants to can make their own copies of my book so I’d be competing against the most efficient book publishers in the country. I couldn’t expect to make a living doing that, and certainly not enough of a living to make it worth my while to write new books, since time spent writing new books is time not spent making copies of existing books.

There is nothing “wrong” with this situation from a moral viewpoint. The outcome is simply, “People have little incentive to author books.” Since there is a free market, and authoring books is not a good way to make a living, people just won’t do it. So this country will not be producing very many new books.

Back in the real world, we kind of like it when new books get written, new pictures painted, new songs recorded, and so forth. If we had a free market, there would be no incentive for doing those things. Therefore, we realize, “Gee, the free market doesn’t work in our collective best interest in these areas.”

So we invent concepts about owning imaginary things, what we term “intellectual property”, and we talk about ideas like “owning” the right to copy something. That is an egregious abuse of language, as a “copyright” really means “restricting the freedom of others to do with their own physical property as they see fit”.

You're making assertions that result in people unable and disincentivized to sell what they've put work into. Nobody has a societal obligation to make products available for free: the foundation of capitalism is that people should be able to price products any way they want, and the market decides whether or not that's reasonable.

You are hurting my head. Think for a minute.

If there were a free market for SimAnt, then anyone who knows how to make it (by copying the existing number that represents it) would be allowed to sell those copies for any price they want. The market would decide if those prices were reasonable. And I’m telling you in no uncertain terms that the free market price for SimAnt is exactly $0. Every supplier of SimAnt can produce a copy of it for essentially no cost, and the price would be driven down to nothing. That is not a knock on SimAnt, that is an economic reality for any product that has zero marginal production cost and no barrier to entry in the market.

And what happens then? The market has gone to work and driven the price to zero. No one can possibly make a profit at that price, so no one makes “selling copies of SimAnt” their primary means of income. That is the direct market consequence. Additionally, there is now no incentive to write new versions of SimAnt (or any software) because there is no way to recover the initial cost of development.

That is not a situation we want, so we invent the idea of “owning” the right to copy SimAnt. Again, that is not a “real” ownership, all it means is the government punishes other people who try to enter the market as competing suppliers of copies of SimAnt. And that, as I have mentioned, is a good thing to a certain extent.

If a vendor isn't allowed to make money off of a product for arbitrary reasons, then we have abandoned capitalism.

Wrong. If a vendor isn’t allowed to try to make money off a product for arbitrary reasons, then we have abandoned capitalism. And that is exactly what happens with copyrights. I do not hold the copyright for SimAnt, so in our current state I am not allowed to try to make money off copies of SimAnt. That is why I say copyrights are anti-capitalist: potential suppliers are barred from entering the market.

In capitalism, no one is entitled to earn money. The only way to get money is by convincing other people to give it to you. And with software—meaning numbers—there is no “natural” way to convince other people to pay you for copies of a number. In pure free market capitalism, if you can’t make money selling something, you stop trying to sell it and go do something else. If we let the market decide, there would be no software for sale—there would hardly be any software at all.

We want there to be software, so we don’t let the market decide. I really don’t see what is difficult to grasp here. The “right to copy something” is a fictional “right” that actually consists of depriving other people of the right to do with their own physical property as they see fit. And in the case of creative works, that is a good thing, so long as it is implemented well. The current system of copyright laws in the United States is not implemented very well. Copyrights should not last as long as they do, by a huge margin.

[Zamfir]

Qaanol, you're conflating free markets and capitalism. They're hardly the same thing, with a long history of free markets before capitalism. While especially early capitalism is deeply intertwined with government-granted monopolies, especially on trade with certain regions or in certain commodities.

[Arrian]

If say Game version 1 wasn't being sold anywhere, but Game version 3 is, by downloading game version 1, you could be considered to contributing to a loss of a sale on game version 3 which is avaliable for purchase even if game version 1 isn't.

That's not how copyright is designed to work, copyright doesn't protect a company's profits in general. You're also forgetting half of the justification for copyright:

1.) Copyright conveys a limited monopoly power in order for a content creator to recoup their costs and earn a living. This is necessary for things like stories and works of art because they are easily copied, in the digital world their marginal cost of production is effectively zero. That being the case, if they were sold in a competitive market where price = MC, price would be zero and our artist would literally starve. Hence, copyright creates a monopoly allowing the creator to sell their work for average cost instead, amortizing he cost of production over multiple sales of the zero marginal cost product, and actually recouping the investment it took to create the work.

2.) Just as importantly, copyright is designed to get creative works into the public domain. It only grants a limited term of monopoly because we understand that these creative works make our world a better place, so we want to ensure that people can get access to them. The first part of copyright ensures that the works will be created, the second part ensures that society continues to have access to valuable works.

In other words, copyright was designed to avoid the problem of abandonware before the computer was even a twinkle in Turing's eye. Google Books and Project Gutenberg were exactly the kind of thing people were thinking of when they created copyright in the first place.

Our current copyright system has been slanted far, far in favor of part 1 at the expense of part 2. We need to, at the least, modernize it in some way. There are a lot of options: Shorten the monopoly outright; create tiers of protection that grant a longer period of monopoly for some things but not others; limit the period of monopoly but sell (a limited number of) extensions to the content creator; abandon the system altogether.

There is some room for argument in favor of the latter, the fashion and restaurant industries are extremely creative without the benefit of copyright protection for designs or recipes. On the other hand, they also sell physical products, so substitutes cannot be provided at zero cost. (This is an excellent TED talk on fashion and copyright.) Red Hat has managed to do software quite well without copyrighting its product. In fact, I'm not even sure why software is copyrightable: It's purely a recipe, a set of instructions telling a computer how to do something, and instructions are not copyrightable.

So, no, morally I don't see any problem with downloading abandonware, even if that means I skip buying a followup game from the same creator. They've gotten their shot at profiting from their product, and the fact that I still find it valuable but they don't get enough revenue to continue making it available tells me that the period of protection granted under current copyright law is poorly tailored.

[Azrael]

In fact, I'm not even sure why software is copyrightable: It's purely a recipe, a set of instructions telling a computer how to do something, and instructions are not copyrightable.

Not to spurn too tangential of a discussion, but the words in a book are no different. Each letter, and the pairing thereof, is a set of instructions to the brain.

Just like code, where each bit has no inherent value. It's the act of methodically ordering them that creates something useful.

[LaserGuy]

There is some room for argument in favor of the latter, the fashion and restaurant industries are extremely creative without the benefit of copyright protection for designs or recipes. On the other hand, they also sell physical products, so substitutes cannot be provided at zero cost. (This is an excellent TED talk on fashion and copyright.) Red Hat has managed to do software quite well without copyrighting its product. In fact, I'm not even sure why software is copyrightable: It's purely a recipe, a set of instructions telling a computer how to do something, and instructions are not copyrightable.

Parts of recipes fall under copyright. The best I can make of the link is that the part of the recipe that says "3 eggs, 1 cup of flour, 1 moose antler" is not covered under copyright. The part of the recipe that says "Soak moose antler in eggs for 1.35 minutes, then cover in flour. Cook over scented candle for 10 minutes per inch, turning occasionally." would be copyrighted.

[Arrian]

In fact, I'm not even sure why software is copyrightable: It's purely a recipe, a set of instructions telling a computer how to do something, and instructions are not copyrightable.

Not to spurn too tangential of a discussion, but the words in a book are no different. Each letter, and the pairing thereof, is a set of instructions to the brain.

Just like code, where each bit has no inherent value. It's the act of methodically ordering them that creates something useful.

Books are literary works, they're stories meant to entertain or teach. Recipes and sets of instructions are not literary, they're literal and copyright wasn't meant to cover them. I can see good rationale for considering a game as a literary work and therefore covered by copyright (certainly the story and characters, the code to make it work might be covered as part of the package, or might not be,) but to call a word processor or operating system a "literary work" seriously stresses credulity.

(LaserGuy: I was looking at that link. From the way I understand it, a recipe isn't copyrightable, but a book of recipes is because it includes descriptions (not the "roast for 60 minutes" sort, but the "this is a savory beef dish" sort) and often pictures, not just instructions. The total work becomes a literary work even though a large proportion of the content isn't literary.)

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

http://www.copyright.gov/fls/fl122.pdf

Also look at the list of what works are copyrightable:

Copyrightable works
include the following categories:
1 literary works
2 musical works, including any accompanying words
3 dramatic works, including any accompanying music
4 pantomimes and choreographic works
5 pictorial, graphic, and sculptural works
6 motion pictures and other audiovisual works
7 sound recordings
8 architectural works

(note that architectural works don't really fit in, all the other are non-rival and non-excludable: The fact that you watch a movie doesn't prevent me from watching it, and I can't prevent you from humming show tunes. But I certainly can keep you from using my building, and there are only so many people who can use a specific building. This category was only added 20 years ago, the rest have been covered for centuries.)

Functional things like recipes and instructions, or cars or clothes are not generally copyrightable, though there is definite scope creep. As far as I know, cars are still not copyrightable but architecture now is: "Architectural works became subject to copyright protection on December 1, 1990. ThEurope, but subject to strict limitations.

So, to reiterate my point, we need to do a comprehensive overhaul of the copyright system, it's been patched together over the course of 400 years and many of its current povisions actively work against some of the principles it was created to protect. Why copyright buildings? It's not like the market will fail to supply an efficient amount of structures in which to live and do business, there are plenty of mechanisms to allow building designers to earn a paycheck without giving them monopoly over the appearance of their buildings for well over half a century after they die. Unfortunately, due to the political economy of the situation, it will be very difficult to move the law in the direction of a less restrictive regime.

[LaserGuy]

Functional things like recipes and instructions, or cars or clothes are not generally copyrightable, though there is definite scope creep. As far as I know, cars are still not copyrightable but architecture now is: "Architectural works became subject to copyright protection on December 1, 1990. ThEurope, but subject to strict limitations.

Some functional things, like maps, have been protected by copyright for centuries as well.

[JBJ]

Instructions may not fall under copyright, but they can be given protection through process patents.

[Arrian]

Instructions may not fall under copyright, but they can be given protection through process patents.

Eggzactly. With significantly shorter periods of protection, and the requirements that they're novel, non-trivial and need to be registered by the creator rather than automatically receiving coverage. Much better system than giving protection for the life of the creator plus fifty years for things with a shelf life of 5 years.

Some functional things, like maps, have been protected by copyright for centuries as well.

I'd bet that those things are all non-rival, non-excludable and easily copied like the images on maps as well. And, maps are descriptions, which should be copyrightable, just like restaurant reviews and travelogues.

[Zamfir]

So, no, morally I don't see any problem with downloading abandonware, even if that means I skip buying a followup game from the same creator. They've gotten their shot at profiting from their product, and the fact that I still find it valuable but they don't get enough revenue to continue making it available tells me that the period of protection granted under current copyright law is poorly tailored.

Going back a little bit: disagreeing with a law is not enough justification to break it. There's a certain moral obligation to stick to laws you disagree with, if you want other people to stick to laws you agree with and they don't. You don't get to pay less taxes or drive over the speed limit just because you disagree with the current laws on them.

If you want to argue that breaking (this part of) copyright law is morally OK, you have to do more than just show that the law is not optimal. You have to show how sticking to the suboptimal law is actively bad, bad enough to outweigh the moral problem of breaking a law in a legal system that you generally would like to be supported.

Of course, you can argue that downloading abandonware it's a very minor thing, like walking through a red traffic light or so. But that's different from no problem at all.

[Роберт]

You don't get to pay less taxes or drive over the speed limit just because you disagree with the current laws on them.

Most people I know regularly knowingly drive over the speed limit.

[JBJ]

You don't get to pay less taxes or drive over the speed limit just because you disagree with the current laws on them.

Most people I know regularly knowingly drive over the speed limit.

And, like software piracy it is most often done when they think no authorities are around.

[Arrian]

If you want to argue that breaking (this part of) copyright law is morally OK, you have to do more than just show that the law is not optimal. You have to show how sticking to the suboptimal law is actively bad, bad enough to outweigh the moral problem of breaking a law in a legal system that you generally would like to be supported.

Of course, you can argue that downloading abandonware it's a very minor thing, like walking through a red traffic light or so. But that's different from no problem at all.

I don't really see a moral imperative to follow a law simply because it's been enacted by the government. Was Rosa Parks acting immorally because she refused to give up her seat to a white man? Is it immoral to break the law by downloading copyrighted material when the copyright holder chooses not to sue you, either actively or inactively through not looking for infringers?

I would, in fact, argue that copyright laws as enacted today are actively harming society. They are preventing creative material from entering the public domain after the original creators no longer have an economic reason to continue publishing them. That is, they are failing at the "limited times" part, especially if you think of limited time as time on a relevant scale to the art itself. They are also so complex that they stifle derivative work and make it very difficult to re-release old work due to the impossibility of determining the owners of many copyrights. (See, for example, the problems with WKRP in Cincinnati.)

<edit>
You might also note that copyright violations are enforced by the party owning the copyright, not directly by the government in the US at least. This makes following the law more of a moral gray area than, say, following traffic laws: The copyright owner has to decide whether the expense of enforcing their copyright outweighs the benefits of doing so, and even though the system supplies significant punitive damages, it's not always the case that the costs will outweigh the benefits. The law is set up so that the copyright owner can decide if enforcing it is worthwhile to them, therefore, it doesn't really take a moral stance of right or wrong, it's an expected value problem. Do you have a moral imperative to follow a law if that law doesn't have a moral imperative to be enforced?
</edit>

(Admittedly, I might not be the best moral guide. I don't see anything wrong with crossing when the light is red, especially when you have stop signs a block to either direction making it perfectly legal to cross any time if you just move a couple hundred feet to the side. And I think driving at a safe speed if far more important than driving the speed limit.)

[Zamfir]

Was Rosa Parks acting immorally because she refused to give up her seat to a white man? Is it immoral to break the law by downloading copyrighted material when the copyright holder chooses not to sue you, either actively or inactively through not looking for infringers?

You think those are comparable cases?

[Arrian]

Was Rosa Parks acting immorally because she refused to give up her seat to a white man? Is it immoral to break the law by downloading copyrighted material when the copyright holder chooses not to sue you, either actively or inactively through not looking for infringers?

You think those are comparable cases?

Nope. It's more of a Churchill style "Madam, we’ve already established that. Now we are haggling about the price," style statement. What threshold of harm do you require a law to inflict in order to morally violate it? A great deal of harm, like Jim Crow laws, or less harm to the slighted party than benefit to the violating party like unenforced copyright?

[JBJ]

I thought we had established that there is a valid legal and moral purpose for copyright, but we were haggling over the "price", or the duration of the copyright. Segregation laws were all bad, and the morally right thing to do was to abolish them completely. Copyright laws are in principle morally good, but there is a valid moral argument for reforming their terms or enforcement.

[Zamfir]

What threshold of harm do you require a law to inflict in order to morally violate it?

Thing is, I don't see the harm in sourmilk's inability to play SimAnt. Not every limit on people's desires is harm.

I don't mind if he downloads SimAnt anyway. I did that myself. I am also OK with and guilty of occasional speeding, drug abuse, dodging import levies, pissing in parks and giving the finger to policemen. Not because those are morally justified violations of the law, but because I am fine with a bit of low-level immorality, within reason. That's in my opinion a healthier attitude towards downloading than pretending to be Rosa Parks Junior.

If someone wants to break the law for moral reasons, to fight the wrongness of the law, they should pick cases that help others, not mostly themselves.

[sourmìlk]

There's no reason software shouldn't be uncopyrightable. All this stuff about it ultimately being a number and about it being reproducible is a total red herring. The thing that matters is that, if I create a product, I do and should have the rights to it. I've put work into it, and in any capitalist system I have the right to attempt to profit off of that work. The base elements of the product and its reproducibility have no bearing on any of those things.

[Aaeriele]

Thing is, I don't see the harm in sourmilk's inability to play SimAnt. Not every limit on people's desires is harm.

On the other hand, I don't think we should default to limiting people's ability to do non-harmful things. The burden of proof should be on those who say it is harmful.