By , August 24, 2011.

Rick Falkvinge, founder of the Pirate Party and self-described “political evangelist“, loves to tell stories.

Last week on TorrentFreak, Falkvinge wrote a post called Nobody Asked for a Refrigerator Fee. In it, he tells the story of the refrigerator and how it displaced the need for home delivery of ice blocks. The broader point is that this industry “had been made totally obsolete by technical development.”

Falkvinge compares this story to today, where some monolithic “copyright industry” is being displaced by “new expressions of culture” and file-sharing. The difference is that when the “ice distribution industry became obsolete”, “no refrigerator owner was sued for making their own cold and ignoring the existing corporate cold distribution chains.”

It’s a neat story, one that plays well with the anti-copyright crowd, but unfortunately gets a number of things wrong.

For starters (and this is only a sidenote), anyone who has been to a convenience store lately and seen bags of ice for sale can tell you that the “ice distribution industry” did not become obsolete with the arrival of the refrigerator. It is, in fact, a $2.5 billion industry today.

Secondly, Falkvinge’s equating of distributors of a single product to the entire “copyright industry” is inexact. The “copyright industry”, as it were, includes not only distributors, but also creators, producers, publishers, and various other component companies. The International Intellectual Property Alliance divides copyright industries in four general groups, and describes them like this:

The core industries include newspapers and periodicals, book publishing and related industries, music publishing, radio and television broadcasting, cable television, records and tapes, motion pictures, theatrical productions, advertising and computer software and data processing. Most of these industries are engaged primarily in the generation, production and dissemination of new copyrighted material. Some, such as software (including business, education and entertainment applications) and data processing, include both the generation of copyrighted material and its application.

The second group comprises the partial copyright industries, a disparate collection of industries, only part of whose products are copyrighted materials. These industries range from fabric to business forms to architecture. The third group, distribution, includes the industries that distribute copyrighted materials to businesses and consumers. Examples include transportation services, libraries, and wholesale and retail trade involved in the distribution of copyrighted products. The fourth group involves the copyright-related industries, those that produce and distribute products that are used wholly or principally in conjunction with copyrighted materials, such as computers, radios, televisions, and consumer recording and listening devices. We refer to the four groups together — core, partial, distribution, and related — as the total copyright industries. 1Copyright Industries in the US Economy, the 2002 Report, Stephen E. Siwek (2002).

Most importantly, just as “no refrigerator owner was sued for making their own cold and ignoring the existing corporate cold distribution chains,” no one has been sued for making their own music, or films, or any other product of creative effort.

No one has been sued either for the business model they’ve adopted, or the technology they use. And there are plenty of new ones in place, with varying levels of success. Jamendo uses BitTorrent technology to distribute its members’ music; Bandcamp gives emerging musicians a variety of methods for selling to fans, from pay-what-you-want digital sales to physical merchandise fulfillment — authors, filmmakers, and other creative professionals have a wealth of options alongside “traditional” avenues for distributing and marketing their works, all legal. The “copyright industries” themselves continue to innovate as well, with new, legal ways for people to experience existing content appearing every day.

What isn’t legal, however, is distributing or selling other people’s work without appropriate permission. Those companies and individuals that have done that — Napster, Aimster, Grokster, Limewire, Isohunt, et al. — have indeed been sued. Not because they “ignored the existing corporate distribution chain” but because they ignored the exclusive rights creators have to the products of their labor. Whatever business model or technology they used to do that is irrelevant.

I’m continually amazed that those like Falkvinge have such a difficult time with such a simple concept. Then again, it’s a lot easier to justify piracy by falsely characterizing it as simply a new way of doing business.



  1. This refrigeration meme must be stopped; it is false equivalency. So is the other often-heard rationalization comparing file-sharing technology to that moment when cars began replacing horses. It is false equivalency because when refrigerators replaced home ice delivery, people weren’t still desiring their ice, but now wanting it for free; they had moved onto a different product, which they were clearly willing to buy. With cars, too, it wasn’t that people were now demanding that they have their horses for free, they had instead found a new technology that they were eager to purchase in the marketplace.

    This analogy doesn’t work with music, as people are still desiring the same end product–somebody’s recorded song–but now want it for free simply because the means by which the song is available has changed. This cannot be equated to the refrigerator/ice or the car/horse analogy. A more accurate analogy instead would be if, say, the emergence of gaming made people not want to listen to recorded music anymore, if their entertainment needs moving forward were satisfied by game-playing. In this case, yes, technology has rendered the concept of recorded music obsolete. But if technology has merely changed the way the music is, essentially, packaged, and if the same end product is still desired, this refrigeration story is just intellectual sleight of hand, and continued rationale for freeloading.

  2. It has to be said that pirate rhethoric shows a surprising capability to be wrong in every single respect (including, as we can see, the facts on the matter).

    It shows either unprecedented stupidity or unprecedented hubris in assuming that the listeners are stupid. Funnily enough, some of this rhethoric could be applied truthfully to the real world – in a different context. For instance: file-bartering does represent an alternative system of content distribution. One could make a case that people prefer digital files to CDs, for instance, or that file-bartering represents a superior distribution model to the music store. Of course, the latter advantage derives mostly from the fact that infringing file-bartering does not bear the costs that the music store does.

    Most amusing is the pirates’ seeming obliviousness to the fact that their position is unsustainable. Regardless of whether you are a pirate distributor or a pirate consumer of professionally created content, you can only remain one as long as professionally created content exists. No matter how convoluted your reasoning, you cannot change the fact that there can be no pirates without content to pirate, any more than you can convince your body it can fly. An ultimate pirate victory would spell their ultimate demise. I’d be all for it, except that they seem hell-bent on taking me with them.

  3. Rick Falkvinge must be Employee-of-the-Month at the Kool-Aid factory…

  4. Great piece Terry. Couldn’t have said it better myself.

  5. I do wander if Mr. Falkvinge would remain such a zealous evangelist if he found people routinely wandering into his home, his car, his office, his retail shop, and taking whatever they wanted, and then calling it a new distribution model. I’m doubtful that this dishonest fool is any kind of a real creator himself. If he was he’d realize how much time, labor, networking, money, space and, more often than not, sacrifice that goes into creating music, films, books, etc. He might understand, then, that creative works have value. But perhaps I’m giving him too much credit.

    I wonder too if the fact that the final product of endless hours of artistic labor/s – i.e. music, films, books, etc., – appear at the click of a mouse, as if by magic, is leading to a disconnect in peoples’ minds. If it appears in a split second, and people can download it instantly, do they fail to understand the back-story? Books, music, film…it just falls out of the heads of artists without any work, right? It’s just a God-given gift – so if God gave it to the artist, the artist should give it to us, right? Artists just live on clouds and the good feeling of their fans and don’t have to eat, pay rent, buy clothes, or tip waiters, or …etc., right?

    Or maybe people are just selfish and childish and they don’t want to pay for what they can so easily steal, but they still want to think of themselves as “good people” so they come up with the kind of weirdly rationalized excuses for their bad behavior like the one Mr. Falkvinge concocts.

  6. I think you’re failing to see the other side’s perspective here. The idea of culture being someone’s property – of culture as someone’s work rather than something that a society creates simply by existing – this is what’s being challenged. You don’t need to agree with that perspective, but the refrigerator metaphor is apt from that point of view. Falkvinge isn’t concerned with the question of who creates or owns a particular ice cube, but with whether coldness is a property for which ownership is even intelligible.

    • “The idea of culture being someone’s property – of culture as someone’s work rather than something that a society creates simply by existing…”

      Society doesn’t create anything “simply by existing”, what a ridiculous notion. Nor has “society” ever been the author of a book, film, album or videogame.

      Why is it that anti-IP’ers always seem to believe that it’s only the artists who stand on the shoulders of giants? There is a cultural component to EVERY product, EVERYONE is standing on the shoulders of giants. So if these morons want to be intellectually honest they better be ready to apply their collectivist nonsense to whatever it is THEY do for a living…

      Unfortunately intellectual honesty seems to be a rare trait amongst those who oppose copyright.

  7. Your argument reminds me of the Lockean theory of value and property, whereby ownership over goods and property is determined by the labour exerted by individuals in the production of those goods or use of property toward such an end. This is not an invalid perspective to have today, but you must understand that it has been around for a while and has informed many of the blunders of capitalist society. That land that farmers toil upon to produce our food is not their land but ours. It is everyone’s. That album that Rihanna made– it is not hers, but everyone’s to enjoy. We all add tremendous value to it simply by listening to and talking about it… These are things that copyright law and the old ‘social contract’ mentality have never taken into account… Our world is as much an empirical one, divided by that which we process through the senses, as it is a part of a larger puzzle where all parts fit into the whole. There certainly isn’t any modern pre-British empire western philosophy to bolster this latter perspective. Perhaps now, with the collapse of the second British empire (the United States), it might be time to give consideration to this more holistic viewpoint.

  8. Funny,
    All these ‘everything should be free’ crowd, always want SOMEONE ELSE’s stuff for free…
    … never do you see these same people offer up their own hard labor… ever…

    • Personally, I would like to assert my collectivist societal RIGHT to the fruits of whatever Bjza and Julian do for a living…for free of course.

  9. @Technotopia

    That’s too funny by far.

  10. Still a more fitting analogy would be that no one should be sued for buying someone else’ ice and keeping it in your own freezer until you are ready to use it.

    It also shouldn’t be illegal to take their ice, crush it, and sell it as crushed ice.

    It also shouldn’t be illegal to buy their ice and then give it away to my friends if I so desire.

  11. Oh no Travis, that’s ice bartering right there!