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The Irony of Copying


© Daryl Cagle

I just couldn’t resist posting (and “stealing”) this ironic comic. But Cagle does have a good point — there are lots of people who depend on licensing intellectual property for their livelihood and they should be protected. The question is what is the best way to do that, and balance their rights with fair use and the public interest.

I do have one quibble with Cagle’s comic, in that he makes the common mistake of equating copyright infringement with theft. As I have pointed out previously, the US Supreme Court has ruled that copyright infringement is not the same thing as stealing.

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24 Comments

  1. Michael wrote:

    I utterly despise the term “intellectual property” and attempts to equate its value with physical property through uses of terms like “theft.” The term “property” implies ownership of a scarce resource, which is not appropriate for a creative economy.

    In a traditional market in which a physical entity changes hands, both parties inherently recognize that resources are limited. If I buy your car, you no longer have it. Market-based solutions work really well here. A company manufacturing items sets the price in a manner that balances supply and demand in order to maximize their profits. (Sure, companies manipulate supply and demand, but the basic idea holds.)

    In the digital age and the creative society, this notion of scarcity flies out the window. If I buy a copy of an MP3 from you, it is just that…a copy. Digital files are not scarce resources. I can make as many copies as I want for no additional cost, other than the extra storage consumption, which is trivial. So consumers perceive little or no value in a single copy of an MP3 file or a ripped DVD or an e-book. This causes the demand curve to collapse, leading to an equilibrium price of $0 per unit.

    However, there is scarcity, specifically in the form of the creative talents of the artists. So the question is, how should markets be structured to be reflect this natural scarcity and perceived value?

    The music industry perceived moderately quickly (only about a decade, but that’s pretty good for a gigantic market) that their traditional $15 per CD with $4 singles market was dead. Consumers didn’t want to fork over $15 for a single song (because the other tracks were often junk). So they found another way that matched their perceived value…Napster. What has done the most to stop music piracy is the creation of iTunes, the Amazon MP3 store, etc. The prices are low enough and songs are sold independently that consumers feel this market more closely matches their perceived value of the product.

    For all the RIAA’s faults, they are learning and adapting.

    The problem is that other industries haven’t learned a damn thing. Book publishers still want you to pay $25-30 for a new hardcover bestseller. Part of that is that many people in the book industry love books. They love the feel of flipping pages, they love lining their bookshelves, etc. So they associate the value with the physical book, rather than the words on the page. As e-book reader quality is becoming much better, they’re going to experience the same demand collapse. The MPAA has the same problem for the secondary market. (Most people still love and perceive great value in going to the movies…high prices of popcorn and snacks notwithstanding.)

    Despite the faults of the industry behemoths, though, this market failure has implications for the artists, as well. Previously, if you signed a good contract with a company that devoted significant resources into marketing your work, you could become very wealthy. Granted, the industry kept most of the money for themselves, but you at least got some. Without proper incentives, if these trade industries go away, artists will have to do their own marketing (spending less time on their art). If they work very hard, they could earn a lot of money. In my view, this is good and bad. It’s good because it disincentives people who aren’t passionate about their art and rewards hard work. It’s bad because it disincentives people who love their art and have no talent for entrepreneurship. So what to do?

    I find the discussion of SOPA/PIPA interesting because it makes for strange bedfellows. Liberals often side with the artistic community, because they share our social values. And yet, here we are siding with the libertarians and free market zealots in a fight against the artistic community. It is pretty clear to anyone who has sufficient background in economics that approaches like SOPA, PIPA, DMCA, ACTA, etc., are doomed to failure and cannot be effective. They are simply attempts to legislate away market forces, and that does not work. They are attempts to prop up industry segments that are very inefficient in the long-run. They are, in effect, the government picking sides…but picking the side that is down 100-0 in the bottom of the 9th with 2 outs.

    So, to wrap up with long-winded rant (sorry about that…too much coffee and too little sleep, I guess…), the questions we need to be answering are: How should markets be structured to properly address scarcity in the creative economy? What alternative markets could be introduced that streamline the distribution of creative content? What mechanisms should there be to support budding artists?

    I have no answers. Just observations and questions…

    Tuesday, January 24, 2012 at 9:24 am | Permalink
  2. drew wrote:

    I’ve commented a number of times on the ridiculous comparison to “theft”. If somebody steals a dvd from Wal-Mart, in most jurisdictions, that’s a misdemeanor with a maximum $500 fine. Copyright Infringement, according to the notice that they require us to watch at the beginning of ever movie we ever see, is a Federal felony which could include jail time and a $10,000 fine. If they want us to see the two as being the same thing, maybe they should treat them as the same thing as well.

    Also, I saw one other interesting observation on SOPA/PIPA as well. One of the many problems with these bills is that they treat Copyright Infringement and Counterfeit goods as the same problem and try to come up with solutions accordingly. If we want to make reasonable advances in Copyright Enforcement (and I’ll admit there is room for some) then we need to recognize that these are two completely separate problems and devise appropriate solutions for each.

    Tuesday, January 24, 2012 at 10:10 am | Permalink
  3. p fair wrote:

    I admit to a lot of copying/pasting because there are so many people who say what I want to say so much better than I do. Having been educated in an school system that was hard core anti-plagiarism, I always add the author or link at the end of my posts. I hope this is an acceptable way to use others communication skills without being guilty of theft.

    Tuesday, January 24, 2012 at 10:10 am | Permalink
  4. Michael wrote:

    To the creative industry, an illicit copy is a counterfeit good, because they view the medium–not the expression it conveys–as the product.

    Tuesday, January 24, 2012 at 11:04 am | Permalink
  5. Anonymous wrote:

    intellectual property is a wide field, not just limited to movies and music. Lets say you are Nike, pay big bucks in advertising and product research. If I manufactuer a look alike, but not specifically licensed by them, thats considered in the domain of IPR. Same with music or movies. What the issue is how to combat IPR theft, not so much is IPR theft really a theft. I personnaly don’t think that SOPA, PIPA et al is the way to do it. As we saw with megaupload, let law enforcement perform it’s due diligence and investigate. If there is theft occurring then indict and shut them down via the court system. Just like a bad guys bank account, send it grand jury, indict then freeze, then take them to court. The laws are already on the books, they just might need some language updates to keep up with the times.

    Tuesday, January 24, 2012 at 2:07 pm | Permalink
  6. Michael wrote:

    @5, yes, IP is not just limited to movies and music. However, the cartoon above and IK’s comment was in reference to copyright infringement. What you are referring to regarding Nike falls under trademark protection, not copyright. They are very different and should be handled differently. To suggest that a unified intellectual property framework can address all these problems is naive at best; it shows an astounding lack of insight, intellectual effort, and basic understanding of economics.

    And, no, you are wrong. We do very much need to have a national debate over whether or not intellectual property theft is theft. There is no Constitutional mandate that we must have copyright, patent, and trademark protections. There are very convincing economic and ethical arguments, though, and these laws have traditionally been crafted in a way that balances the interests of producers (who should be properly compensated) and consumers (who should be fairly rewarded for their purchase). For the past decade or two, consumers have become increasingly convinced that they are not being fairly rewarded–that they are paying too much and getting too little in return.

    Piracy is inevitable when consumers feel they are not being fairly compensated for the money they spend, and the only sustainable long-term solution is for producers to adapt to a change in the market.

    Tuesday, January 24, 2012 at 2:52 pm | Permalink
  7. Max wrote:

    Before the DMCA, non-commercial copyright infringement was not even a minor crime. It was a civil offense.

    Tuesday, January 24, 2012 at 3:44 pm | Permalink
  8. Iron Knee wrote:

    A few comments on these comments. Michael, I’m not sure the RIAA is “learning and adapting”. I think Apple forced iTunes down their throats, and they are still gagging. On a related note, some people think this is the real reason Megaupload was shut down — see http://www.digitalmusicnews.com/permalink/2011/111221airvinyl and https://plus.google.com/u/0/111314089359991626869/posts/HQJxDRiwAWq

    A long time ago, it was expensive to record music in a studio. Now anyone can do it at home. The other reason for the studios, which Michael mentions, is to promote the music (at one time this included paying off radio stations to play songs so they would become popular). Now, there are plenty of ways to do this that do not require a major label — iTunes again being one of them, and Amazon’s music services being another. If MegaUpload had been able to launch MegaBox, it probably would have been another. All of these require little or no entrepreneurship on the part of the artists.

    The other product that depends on IP laws is prescription drugs, which nobody mentioned here.

    P Fair, attribution does not excuse you from infringement. When I first started this blog, I wrote off to many of the cartoonists and writers whose materials I use for permission to copy, and it was always given. I guess I’ve gotten lazy because I’ve stopped asking. (Also, I get quite a few submissions from people asking me to use their material.) It is unclear whether this blog is fair use since I always use material in an educational context — using it to make a point and provide information (the law is murky on this). But I feel like proper attribution is the right thing to do.

    But it doesn’t really matter what the law says, because if a large IP holding company came after me, defending myself would not be practical (even if I was in the legal right). That was the whole problem with SOPA/PIPA, it was like all those people who were sued for sharing music files until some of the cases actually went to court (which was far more expensive than simply settling with them for a few thousand dollars), and the RIAA lost.

    Tuesday, January 24, 2012 at 3:49 pm | Permalink
  9. Michael wrote:

    OK, perhaps “dealing with it” would be a better term. But you had to go ahead and bring patents (re: drugs) into the mix, didn’t you, IK? :-)

    Interesting regarding the cartoons… I never looked and assumed you were just linking, but now I see that’s not the case. As for fair use, you can also argue that it’s used for commentary, too. But, yeah, it’s murky.

    As for the RIAA losing, don’t forget about the cases they won. Between those cases and the extortion settlement fees, the litigation route was highly profitable even if ethically dubious.

    Tuesday, January 24, 2012 at 4:59 pm | Permalink
  10. Patricia wrote:

    It is interesting to read these posts and see a lot of energy devoted to allowing the free copying (at no additional expense) of musical (etc.) files.

    I hesitate to enter this conversation, but the idea of intellectual property might look different if you, as the creator of that property, suddenly find your creation used by some other entity; who is profiting from your intellectual effort, and more importantly, refusing to share their profits from that use with the creator of that property.

    This is probably, a different issue, but one that needs to be borne in mind when disparaging “intellectual property” as a concept.

    Tuesday, January 24, 2012 at 5:17 pm | Permalink
  11. Iron Knee wrote:

    Patricia, read this — http://gigaom.com/2012/01/13/tim-oreilly-why-im-fighting-sopa/

    In my day job, I create lots of intellectual property and depend on it for my living. I’m not disparaging IP as a concept at all.

    Tuesday, January 24, 2012 at 6:13 pm | Permalink
  12. Michael wrote:

    Patricia, please read the posts again and tell me where I or anyone else said that free copying of files should be allowed. I was simply stating the fact that it does occur, and there are economic reasons for it. If you want to reduce (not stop…it is impossible to stop any crime) copyright infringement to ensure that content producers receive adequate compensation, you need to examine the causes of the market failure and address those. As I said above, the creation of legitimate MP3 stores did significantly more to reduce piracy than the DMCA or any other legal tactic.

    The reason that I disparage intellectual property as a concept is because patents, trademarks, and copyright are very different concepts and should be treated as such. Pushing them all under the umbrella of a single term is like trying to push a square, hexagon, and circle through the same triangular hole because they’re all shapes. It is folly, ineffective, and counterproductive.

    Tuesday, January 24, 2012 at 8:31 pm | Permalink
  13. Patricia wrote:

    IK and Michael, as the children’s story, “The Little Prince” mentions: the Fox points out that “Words are the source of misunderstanding.” (of course, a citation is needed here, but my memory fails me! :) ) It was not my intention to be accusatory, but to simply point out what you have stated yourself in your last post, Michael: “Pushing … all under the umbrella of a single term is … folly, ineffective, and counterproductive.”

    Most importantly, I wanted to insert a note of caution: rules/laws that hold true for individuals (i.e. “real” people) cannot really hold true for (“unreal”) mega-corporate entities. However, the push for and against these laws right now sometimes seems to overlook that possibility.

    Speak on, long and loudly, for your interests; but ultimately, the only interest that will help most of us is a protective interest in real, human individuals and their creativity / productivity.

    Tuesday, January 24, 2012 at 9:29 pm | Permalink
  14. Michael wrote:

    And what, pray tell, are my interests? The funny thing about arguing for a rational, economic approach to solving the problem of piracy (I really hate that term, but that’s a different rant) is that you tend to get lumped in with the pirates.

    Strictly speaking, I guess I am. About 10-12 years ago, I downloaded some songs–probably about 15 total. I don’t think I have any of them anymore because I’ve deleted them along the way. They were all songs that I wouldn’t have considered buying even if they were a penny. (Really, who still wants to listen to Cartman singing “O, Holy Night” or “Come Sail Away?”) Everything else in my collection–which is probably in the range of 500 CDs–was purchased legally.

    The one pirated item that I do have in my collection is a pirated copy of Batman Begins. But here is the delicious irony… Anti-piracy technology was the instigator for that illegal download. Just like with CDs, I like to rip digital copies of DVDs. That way, I can watch movies on my computer on long flights without messing with the disc. I also have a back-up copy in case the original gets scratched. However, Warner Bros. had encrypted that DVD with a new technique that, at the time, I didn’t have a way to bypass (but others obviously did). Considering I had just paid $20 for the movie and there was no legal market that I could purchase the digital movie from, I had no alternative if I wanted a digital copy. I would almost call it a Hobson’s choice, but that’s not quite appropriate, because there really was no legal option for me to obtain a digital copy.

    Other than those transgressions, I neither participate in nor condone piracy. I agree wholeheartedly that the ultimate goal is to protect “individuals and their creativity/productivity.” And the way to do that is to restructure the market to address the failures. Passing legislation that superficially attempts to maintain the status quo for the sake of industry is not. Why should consumers have to pay bloated prices to cover “overhead” that has no basis in real costs and does not reward the true creators? If technology allows for a sudden and drastic drop in production costs, why should consumers be expected to pay the same price to middlemen who are no longer necessary?

    Having said that, I do have an interest in the matter that I should disclose. I am an academic. And coming from that background, I can say that the current trends in copyright and patent law are very alarming and will have a very negative impact on the future of scientific research. Being an academic involves publishing, under the assumption that scientific research is supposed to be public knowledge for the betterment of society. Personally, I would love for my research (which is publicly funded!) to be used–for free, even–by others who can find a way to profit from it!

    And yet, the publishers lock our papers up behind subscription services for exorbitant fees. I can’t tell you how many papers I have not read (which means I haven’t learned from that work and I haven’t been able to cite it or extend it) because they require payment.

    Take a look at Myriad, a company founded solely to profit from breast cancer research. They didn’t discover the BRCA1 and BRCA2 genes. That work was done elsewhere. The founders did develop a testing technique called BRACAnalysis (mostly paid for with public funds!), but they were not the true pioneers in discovering the genes. However, they did apply for the patent first. But they didn’t just patent their isolation and testing technique. Nope. They wrote it up and still argue that their patents cover the entire gene. And they aggressively pursue it internationally, too. So, when Canadian provinces offered different testing techniques (that were significantly cheaper), Myriad issued a cease and desist. By pushing for monopolistic control over everything to do with these genes, Myriad is simply artificially increasing the price of breast cancer testing, which will result in people’s deaths. (By the way, no, I am not a medical researcher and I have no stake in the BRCA debate. This matter just pisses me off.)

    So tell me again how aggressive legislation protecting all forms of IP is so great…

    Or why patents, trademarks, and copyright should all be treated identically because they are all “intellectual property.”

    By the way, I really didn’t mean to dominate this post. I meant to shut up earlier, but this is a topic that I get very passionate about.

    Wednesday, January 25, 2012 at 1:22 am | Permalink
  15. Falkelord wrote:

    I had to write an article a while back dealing with “a topic of our choosing.” I’ll admit I’m a pirate, but many of the things I’m “illegally downloading” are actually just copies of things I DO own but no longer have the means to enjoy them.

    Case in point, I own several old NES games. However, my NES has long since succumbed to dry-rot and the cables are beyond frayed. Instead, I have downloaded many of the same games (that I paid for in the first place) to be able to still enjoy [something I already paid for].

    My rationale is that since I have already paid for the product, it is mine. I cannot alter the product in any way (i.e. edit the game code, copy it and sell it), but I do retain the right to use it as I see fit (i.e. copy the ROM to a computer and retain it for my own use).

    The problem with bills like SOPA/PIPA is they equate ALL piracy and file sharing as “illegal” when in reality, a good portion of it is redistribution of software/goods that one wishes to use again, but has long since lost their copy they originally paid for.

    This isn’t to say that there aren’t the “bad apples” (and I use that for lack of a better term) out there who pirate willy nilly and have an utter disregard for ANY distributor/artist to make any profits while they still enjoy the products, but I do want to clarify that an astounding portion of the people who pirate don’t actually do it maliciously, they do it so they can be entitled to what they paid for long after they have lost or destroyed the media from which it came.

    I also do this a lot with music; I don’t justify having to spend ANOTHER $15 to purchase a CD that I own but can’t find to put into my music library. I’ve already spent the $15, so I technically have paid my fees to own the music.

    Wednesday, January 25, 2012 at 3:35 am | Permalink
  16. TJ wrote:

    Patricia wrote:
    I hesitate to enter this conversation, but the idea of intellectual property might look different if you, as the creator of that property, suddenly find your creation used by some other entity; who is profiting from your intellectual effort, and more importantly, refusing to share their profits from that use with the creator of that property.

    Patricia, are you talking about the consumers/downloaders, because everything you said can apply to the record companies themselves…

    RIAA Accounting: Why Even Major Label Musicians Rarely Make Money From Album Sales
    RIAA Accounting: How To Sell 1 Million Albums And Still Owe $500,000
    ‘Hollywood Accounting’ Losing In The Courts
    Does Ticketmaster Undercount Tickets Sold To Underpay?
    Universal Music Sued for Cheating Music Artists Out of Royalties

    Wednesday, January 25, 2012 at 10:46 am | Permalink
  17. Iron Knee wrote:

    Michael (and other people), I’m enjoying your discussions / rants on this topic.

    Wednesday, January 25, 2012 at 11:01 am | Permalink
  18. BuddyGoodness wrote:

    Yeah Michael, stop apologizing for your comments. I am enjoying reading them.

    Wednesday, January 25, 2012 at 11:34 am | Permalink
  19. Patricia wrote:

    TJ — to enter the fray once more (and unwillingly :) ) I was thinking in terms of creative artists and writers who find that THEIR creations (of whatever sort) have been absorbed by some corporate entity, used by that entity for its own profit, and the original creators never see a dime from that use.

    This will no doubt ruffle even more feathers, but the trend of hiring writers and then using them as “content providers”
    and paying them little more than they could earn as typists comes to mind — :)

    Anyway, it’s not something I can (or even want to take the trouble to) provide citations for — word of mouth from people it has happened to — no offense intended to any reader here.

    Wednesday, January 25, 2012 at 6:01 pm | Permalink
  20. TJ wrote:

    Good, I didn’t really understand the comment I responded to. When I read your first sentence, I thought the next was continuing that thought, condemning downloading for hurting artists/creators.

    Instead I think now that you were referring to more or less the same idea I went to, though you might have been more broad in scope calling out the whole industry of corporate entities profiting off the creative work of others while I concentrated on abuses by said entities.

    Thursday, January 26, 2012 at 1:38 am | Permalink
  21. Richard wrote:

    I think what you do here IK is a great example of reblogging done right and I applaud you for linking back to content providers both in the image posting and in the copyright line.

    An interesting question is whether revenue generated by advertising at a site that has permission to reuse material ought to be shared with content providers, many of whom are traditional “analog” artists who may not know a referrer log from a lincoln log.

    And, I think those of us who are consumers of the content IK posts here have an obligation to follow links when interested so that the content provider gets some traffic (and maybe a comment) too. Most of these folks draw these cartoons for their day jobs and while they may make money from newspaper syndication, as we all know, that medium of exchange is in trouble.

    Maybe IK should start his own syndicate. I subscribe to Funny Times mostly to keep revenue flowing to the cartoonists and writers who I want to support. Maybe IK should offer a subscription model. I’d subscribe to support the artists who’s work he reposts.

    Thursday, January 26, 2012 at 12:22 pm | Permalink
  22. Andy Singer wrote:

    As some other folks have said, I find the cartoon’s analogy way too simplistic.

    If someone is MAKING MONEY off your cartoon or content or causing you to lose substantial amounts of money on a property (and you can prove it), the law is fairly friendly and the internet offers lots of tools to find and monitor infringers on the internet that never existed in the days of print.

    In the example in Daryl’s cartoon, it’s on someone’s private blog, they aren’t making money off it and it’s hard to demonstrate that you, the cartoonist, are losing money. You could argue that having a cartoon go “viral” actually boosts its resale value (to “for-profit” entities) and boosts your profile and earning potential as an artist, as more people find out about your work and are willing to hire you for commercial illustration gigs. If someone posted the cartoon on a for-profit website (either journalistic, advertising or otherwise), you actually have a better chance of finding out about it, using search software and hiring an attorney to get money from the offender.

    In the old days, a lot of small, unscrupulous newspapers would run your cartoons or columns (that they’d steal from somewhere else) and not pay for them. (I know a paper in Duluth Minnesota that used to do this). If it was in another, far away city, you’d have to rely on someone you know finding out about it and alerting you to it. Companies had to hire “watch agencies” in other cities and countries to protect their intellectual property. They still do this but to a reduced degree since things can be more readily monitored using the internet itself. I worked as a paralegal at the IP office of 3M Corporation so I have some direct experience with this.

    Someone posting your cartoon on a blog is like having a lot of people tear it out of a newspaper and post it on their refrigerator (or photocopy it, put it into their free “zine” and send it to friends). A lot of successful publications started out as free zines in the 1980s and a few cartoonists got their start in zines (including, I believe, Dan Perkins “Tom Tomorrow” in Processed World).

    SOPA and PIPA would have only benefitted large companies who had the legal resources to sue large sites for infringement or large commercial sites who could hire attorneys to defend themselves. Small sites and content providers who got labeled as “infringers” (even non-profit political ones) would effectively be shut down. This already happens on Youtube and other sharing websites. A friend of mine runs the “Dump Bachmann” website devoted to lampooning Michelle Bachmann and he provides content for it. He posts video of her and her associates (at public events) and sometimes makes collages of these images for satirical little animations and cartoons. One of her associates got the original Republican shooter of a particular video to file complaints with Youtube of “copyright violation.” Youtube has a “3 strikes” policy. If you get 3 strikes, they can remove all your content. Because the Dump Bachmann website has hundreds of videos on Youtube (that it “frames” on its own site), it now has to be absurdly careful or it will lose all its content. It lacks the money to defend itself against these essentially political accusations in court with Youtube and get its content restored. Thus free expression gets censored. PIPA and SOPA would have made this even worse. The only people who would have benefitted would be the IP lawyers.

    Thursday, January 26, 2012 at 1:42 pm | Permalink
  23. Iron Knee wrote:

    Richard, I have been a subscriber to Funny Times for many years — it is one of the things that got me interested in doing this blog. I think the best thing people could do to support cartoonists would be to also subscribe to Funny Times.

    As for sharing my vast advertising revenues, they are welcome to all of it. Last time I checked I make on average $2/day on this blog. Yes, I could probably make more if I worked at signing up advertisers, but what would be the fun of that?

    And thanks for the great comment, Andy. I absolutely love your comics. I mainly work with computers, but the same issue applies. Some of the same companies that fight software piracy have admitted to me privately that piracy has helped make their software ubiquitous and made more money for them. That doesn’t make actual wholesale copyright infringement right, but it is an interesting fact.

    Thursday, January 26, 2012 at 2:21 pm | Permalink
  24. Richard wrote:

    IK: I wasn’t talking about this site where you’ve told us in the past you’re not keeping profits in the Cayman Islands. I was thinking about sites like Huffington post which others have referred to as “word mills” where writers aren’t paid for content and no doubt photographers and illustrators aren’t either but someone’s making some serious money from advertising.

    Andy’s point is well taken, there’s a benefit to being on a popular site and having your content go viral from being included there, although that benefit doesn’t always come back to the author in monetary terms.

    One might also say that the reason aggregation sites are popular is because of the quality of the content they choose. Yes, you IK are the chooser and filterer and you’re good at it and deserve something for that but so do the authors of the content. Again, I think YOU do it right, I’m talking generally here.

    I really do believe in this age of RSS and other types of social connectedness there ought to be a technology for tracking page views that an artist like Andy or Daryl could embed on their images, then set them out in the world knowing that whoever blogged them would automatically be connected to the mothership.

    This is less about money, more about attention finding its way back to the author.

    I’m particularly sensitive about this because I’ve had many things stolen over the years. It hasn’t stopped me from freely sharing but it does give me pause.

    Thursday, January 26, 2012 at 3:18 pm | Permalink