Wednesday, 16 May 2012

Socks, shoes and feet – dissecting a copyright analogy

Many, many people have tweeted this video snippet of Canadian Member of Parliament Dean del Mastro on the subject of format shifting.  This is what he said:
“When you purchase something, you purchase it for a specific purpose.   … He’s making the argument that you should be allowed to format shift that piece of copyrighted material, even though you didn’t pay for that right.  That’s what he’s saying Madam Speaker. 
It’s like going to a clothing store and buying a pair of socks and going back and saying ‘By the way I’ve decided it wasn’t socks that I needed, what I really wanted was shoes.  So I’m just going to take these, I’m going to format shift from socks to shoes and I’m not going to pay anything because it was all for my feet’, Madam Speaker.”
Let’s examine why this is such a poor analogy.

First, there is the hidden premise that a retailer or manufacturer can, as a matter of property rights, restrict the purposes for which a purchaser can use a tangible product. 

You may indeed purchase a product with a specific purpose in mind, or the product may be advertised for a particular purpose.  That will affect the manufacture or retailer’s liability if you suffer injury as a result of using it for a different purpose.  But that does not give either the manufacturer or the retailer the right to prevent you doing so.  The property has passed to the purchaser, who can do what he likes with it.  A right to prohibit use for a particular purpose would have to be created by an express contractual obligation, which might or might not be enforceable.    

Second, even if the initial premise were sound the conclusion does not follow.  His example is patently not about using a purchased product for a different purpose, but instead is about taking a different product that might suit the changed purpose better.  Commenters on the video lost no time in pointing this out:  the socks/shoes/feet analogy was more like having to pay again for:

-         Using the socks as gloves (MrNatums)

-         Buying blue socks and dying them red (ChadEnglishPhD)

-         Buying a hammer and using it as a doorstop (ChadEnglishPhD)

-         Buying a screwdriver to fix some pipes, then using it to fix a PC (Ooabloka)
Third, he has inverted the product and the format.  Changing socks for shoes is like swapping a Lily Allen track for a Beethoven sonata.  That is not format shifting from socks to shoes, it is changing one product for another.  Format shifting is, if we must adopt the analogy, taking one product (either socks or shoes) and swapping it from one foot to another.

None of which gets us much nearer an answer to the question of whether it is appropriate for copyright to include the right to prevent format-shifting, and if not what types of format shifting should be excluded from copyright.  The argument that ‘you are doing something without paying for it’ presupposes that the copyright owner should have the right to prevent it, which is precisely the issue that is up for debate.  The argument assumes the conclusion.  Flaw number four.

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