Photographers who compose a picture in a similar way to an existing image risk copyright infringement, lawyers have warned following the first court ruling of its kind.

The images in question are here (PDF) if you fancy a look.

Suppose the CEO of Wal-Mart came to Congress demanding a $50 million program to deploy FBI agents to frisk suspicious-looking teens in towns near Wal-Marts. A lawmaker might, without for one instant doubting that shoplifiting is a bad thing, question whether this is really the optimal use of federal law enforcement resources. The CEO indignantly points out that shoplifting kills one million adorable towheaded orphans each year. The proof is right here in this study by the Wal-Mart Institute for Anti-Shoplifting Studies. The study sources this dramatic claim to a newspaper article, which quotes the CEO of Wal-Mart asserting (on the basis of private data you can’t see) that shoplifting kills hundreds of orphans annually. And as a footnote explains, it seemed prudent to round up to a million. I wish this were just a joke, but as readers of my previous post will recognize, that’s literally about the level of evidence we’re dealing with here.

There are two kinds of copying. There’s good copying, and there’s bad copying.

(This is a long post, so I’ve split it so it doesn’t overpower the entire home page)

Good copying doesn’t harm, and might just help. Good copying is when somebody enjoyed the book and passed it on to someone else, or when someone enjoyed it on Kindle and wants to convert it to a different format for a different device, or wants to print it out, or whatever. None of these things harm me, and they might just help: someone who enjoys Coffin Dodgers now, for free, might recommend me to someone who buys it, or they might buy the sequel.

My take on it is that I wrote Coffin Dodgers because I wanted it to be read. Of course I’d like to make some money out of it, but that isn’t my main concern (although unlike many other writers, I can afford to say that because I already have a job).

As Michael Marshall says in the post I linked to earlier on:

of course a little bit of this is not the end of the world and of course a degree of laxity with regard to sharing materials is part of how the net works and what makes it the extraordinary resource that it is

As I say, I don’t have a problem with it – anyone who’s spent any time at all hanging around this blog or reading my columns will know that I’m against draconian internet regulation, and that I think the claims of damage due to piracy are usually massively overblown.

The problem, though, is that there are bastards out there. Hello, bad copying.

Bad copying has a financial component: it’s when copies are provided for money, and the creator doesn’t get anything. The sites I’ve found offering Coffin Dodgers – or at least, claiming to; I’m buggered if I’m going to join up to find out if they have the book or not – run ads and charge for membership. It’s not much, but you can see why the copyright industries go crazy when they see sites linking almost exclusively to illegal content pulling in hundreds of thousands of pounds in ad revenues. I covered a case recently where, in just three years, the owner of one website made a claimed £147,000 from selling ad space around links to copyrighted content.

Piracy isn’t generally speaking an ethical decision, but a financial one: people pirate because free is cheaper than any price tag, and because they’ll get away with it. Personally I’m a fan of downloading leaked albums I’ve pre-ordered in CD format or on iTunes, or TV programmes I forgot to set the Sky+ for. I don’t think I’m being evil by doing this – I’ve paid for my pre-order, my TV licence and my Sky subscription – but I do think it would be hypocritical of me to whinge if somebody’s sharing Coffin Dodgers on a file sharing network or by email or IM. However, I don’t think I should applaud if somebody on the other side of the planet is making money at my expense.

In my case it’s the principle that’s annoying – I’ve sold two and a half thousand ebooks legally, which is nothing; never mind being on the radar, I’m not even in the same airspace as proper writers, so if even one person has actually downloaded Coffin Dodgers from a dodgy site I’ll be amazed – but I can see where the WE MUST SHUT THE ENTIRE INTERNET demands come from and why writers with proper profiles and serious numbers of readers get so pissed off.

I don’t know what the answer is, but I do worry that the copyright debate has become too polarised. It’s become about absolutes, total internet freedom versus total lockdown, and there’s much, much more to the copyright debate than that.

The purpose of copyright isn’t, as many people assume, to stop people copying things. It’s bigger than that. It’s about encouraging the creation of new and valuable things by giving creators, for a limited period of time, protection so that they can benefit from their efforts.

It’s been corrupted by never-ending copyright extensions, by rights-grabbing contracts and by the belief that if Mickey Mouse ever falls into the public domain, the skies will open and the four horsemen of the apocalypse will ride out, but that doesn’t mean that copyright itself is a bad idea.

Ian Betteridge put it very well a few years back:

We should always remember that copyright is an artificial monopoly granted because it has a beneficial effect for society as a whole, not privilege that’s designed simply to benefit a particular class or profession

I think the corporations have perverted that, and I think the internet has made it exceptionally difficult to enforce, but I’m not convinced that the answer is to just forget about copyright law altogether. We just need to differentiate good copying and bad copying, and to protect the former while trying to prevent the latter.

Easier said than done, I know, but it’d be nice if we tried.

The government is supposed to be on the side of laws, isn’t it? Copyright is a law too. If they don’t defend that law in the new kind of social space that the internet represents, where will the laxity end? What other laws will be let slide on the grounds that they might impede the rights of Internet users to do what the heck they feel like? What about your right to privacy? You care a lot about that one, don’t you? What makes it so desperately important for the government to defend your rights there, but not defend others’ rights to be paid for their intellectual property?

Amazingly, I have an opinion about that.

“Shareholders and customers of BT and TalkTalk might ask why so much time and money has been spent challenging the act to help reduce the illegal traffic on their networks,” BPI boss Geoff Taylor said. “You’re all our bitches now.”

OK, he didn’t say that last bit. But it’s true all the same. If BT and TalkTalk don’t appeal, we’re stuffed.

While the notional worth of the 1.2bn illegal downloads was almost £1bn, the BPI estimated the actual loss from “forgone spend” was £219m in 2010.

Andrew Orlowski at The Register has a wonderful take on the news:

The British record industry group estimates there are 8 million people, or 23 per cent of the UK online population, using P2P software.

That means around two-thirds to three-quarters of people don’t indulge in piracy – a figure rarely mentioned in this debate, and a remarkable figure considering the risk of being caught (which are negligible) and potential savings (which are considerable). That means most people are fairly honest, and a considerable amount of money is not being tapped by the legitimate music business.

The BPI figures also neglect to mention that the music business is growing. Yes, sales of physical products are declining, but overall it’s party time. A report by PRS last year showed a changing industry:

retail product sales have declined, but the other parts of the industry have grown noticeably more than the decline in retail sales. This growth has come from a few sources. Live show attendance has increased more than retail sales have decreased. Consumers have actually spent more. On top of that, the business to business side of the industry (sponsorships, licensing, advertisements, etc.) has grown as well, opening up new and lucrative means of making money.

It’s not all good. There are real concerns that the money’s coming largely from established acts, the U2s and the Muses and the Rihannas and so on: they get a disproportionate share of the money pie, and there are fears that there isn’t another generation of enormo-acts behind them.

That may be true, but the reason for that isn’t piracy: it’s a whole mess of factors including an increasingly fragmented media landscape, the rise of alternative forms of entertainment such as videogames and so on.

Another big factor is the way in which record companies have changed: increasingly the landscape is one of mega-corporations whose need to satisfy shareholders means they want results now, not ten years from now. As the cliche goes, if U2 were around today, they probably wouldn’t get signed – and if they did get signed, they’d be dropped before their third album.

Over at No Rock, Simon H B adds:

Taylor [Geoff Taylor of the BPI] ends with a plea for more legislation. The BPI always think that what is needed is more unenforceable legislation.

How could the record labels ensure their demands get a sympathetic hearing? Here’s one idea: Private Eye reports that Universal Music gave £80,000 to the Tories in July.

Back to Simon:

The trouble is, with the bunch of turnips sitting in Westminster at the moment, they might get their wish. More time, money and effort trying to buck the marketplace. It’ll still fail, though.

If we were asked to describe the last seven days in one word, we’d say “week” – but if we weren’t allowed that word, we’d say “roboty”, “batty”, “flashy” or “printy”.

And here’s a wee piece about the government’s exciting new plans for “Silicon marshes” in London’s East End and some Google-friendly changes to our intellectual property laws.

Is it just me, or is there something horribly unethical about all of this? Having Google and Facebook throw Shoreditch a few crumbs while avoiding hundreds of millions, even billions of pounds in tax is a bit like someone stealing your dinner and then offering you a half-chewed chip.

Could the same kind of thing work for ebooks? Is there enough ad money to go round? Do book readers want to social network?

we have real-world equivalents for both its free and subscriber services. Libraries give books away for nothing – or seem to; in reality authors get a little bit of money in the form of Public Lending Right (PLR) royalties, a gap that online ad revenues could easily plug – while book clubs have offered heavily discounted prices to subscribers for decades.

Could similar ideas work online?

One of the things that sent people to the pirates with music was the problem of file formats: your player wanted X format, the pirate sites had it in X format, but the only legal versions were in Y format.

Publishers are keen to avoid the same thing in books.

According to BT and the Carphone Warehouse, it seems that implementing the proposed three-strikes system would cost at least £2 per connection per month – an enormous amount of money that will have little or no effect on file sharing.

Wouldn’t it be smarter to subsidise Spotify?