Sunday, February 7, 2010

My rambling thoughts on the piracy thing, part 1

I first heard about Napster through a friend in 1999. He went on and on about how great it was, and how I absolutely had to try it.

I never bothered. Two words: dial-up.

But I understood why it was cool. You could find all kinds of songs that didn't exist in stores. You could turn other people on to your favorite bands, and they could turn you on to theirs. A total love-in. Dig it.

So when Napster's legal troubles began around a year later, they took me by surprise. The idea that their site enabled people to do anything illegal hadn't crossed my mind. The users were just music lovers, sharing music that they owned.

I never thought of it as stealing.

* * *

I'm a pretty honest, law-abiding person. I've never shoplifted. I don't cheat on my taxes. I tip my servers. If a friend told me that she shoplifted, or cheated on her taxes, or stiffed her servers, I would express my disapproval.

And despite all that—despite being a musician who has music for sale—I still can't get all that worked up about people who download music without paying for it.

For one thing, it's not exactly stealing. If you come to a Cinder Bridge gig and lift one of our CDs, then we don't have a copy of that CD anymore and no one else can buy it from us. That's theft. But if you get a bootleg copy off the Internet, we haven't actually lost anything.

Well, we may have lost the income we would have received had you paid for the album. But that assumes you would have paid for the album if you couldn't get it for free. Maybe you would have decided not to.

That doesn't make it right, necessarily. And it certainly doesn't justify a two thousand-song music library consisting entirely of pirated downloads. It just makes it ... different from theft.

This is a complex issue. I don't pretend to have all the answers. On the other hand, I've formed some pretty strong opinions about the RIAA, which believes it does have all the answers.

More on that in our next installment.

7 comments:

Jannie Funster said...

I know very little about Napster. Would have to look into it more.

I do know iTunes pulls in some major bucks.

John Wenger said...

Of course it is exactly like stealing, because it is stealing. Why would someone steal a CD? To listen to the music, of course. The theft of the CD would be meaningless if it had nothing on it; the purpose is to hear the music. If you can hear the music without stealing the physical object on which it resides, you are still stealing the music.

Granted, if you steal a CD with music on it, you have stolen more than if you steal the download, because, as you say, you have deprived the owner of the music as well, but just because someone slateals the music alone doesn't mean he hasn't stolen; it just means that he has stolen less than if he stole the CD itself.

So yes, downloading a bootleg is exactly stealing. And doing it occasionally is less bad than doing it all the time for the same reason that swiping a dollar you see left as a tip is less bad than stealing a million dollars from a bank, but both are stealing.

Therefore, your statement that downloading music is different from theft is mistaken.

Three Chord Monty said...

When you steal you deprive the lawful owner of physical or intellectual property.

When you engage in copyright infringement by creating a copy in the download process, you are not stealing. The original holder has not been deprived of their original.

That's a lot of why this is a civil offense, not a criminal one. When someone has stolen from you, you can engage law enforcement. You can also engage law enforcement if you have been the victim of piracy, which is neither stealing nor illegal copyright infringement as in downloading. Piracy is more akin to counterfeiting, yet the term is misused when discussing 'illegal downloading.'

'Illegal downloading' isn't even illegal; it is unauthorized, but it's not enforced as an illegality and probably not enforceable anyway. Uploading is the target of the RIAA lawsuits, not downloading. Jammie Thomas was sued because she made copies available to downloaders, one of those downloaders purportedly being the firm the RIAA hired to detect who was making unauthorized copies available without consent of the copyright holders.

To some this is splitting hairs. To others it's a matter of understanding what is and isn't the case when it comes to the issue.

Remember, if you steal a car, the owner of the car is out of a car. If you engage in unauthorized downloading, you are infringing on copyrights by virtue of the uploader allowing an illegal copy to be made that does not remove the source file.

John Wenger said...

Three Chord Monty (nice moniker, by the way) wrote a thoughtful reply in which he starts by saying that stealing involves depriving "the lawful owner of physical or intellectual property."

It is true that downloading or uploading material doesn't deprive the owner of his intellectual property altogether, but it does involve a partial theft of that property, insofar as he has taken something that doesn't belong to him and because he has deprived the owner of the money due him for that property.

I might add that counterfeiting money is not theft either, since neither the government nor anyone else has been deprived of property, and yet it is a crime precisely because it lessens the value of money (why else ban it).

I am a mathematician, not a lawyer, so I will not argue the legal distinctions you bring up, but morally I don't see a difference.

I don't understand why uploading is illegal and not downloading; to me they are distinguished in the same way that selling stolen property is different from buying it.

In any case, to the extent that any of this is not illegal, that is only because the laws do not so specify, and that can change. The real question, then, is whether it should be illegal. It seems to me the answer is yes.

Three Chord Monty said...

Now we're in the realm of agreeing far more than disagreeing yet still bogged down by use and misuse of terms. I'm not a lawyer either, just someone who has followed this issue closely for many years. The best I can offer is that the law has not yet caught up with technology.


>It is true that downloading or uploading material doesn't deprive the owner of his intellectual property altogether, but it does involve a partial theft of that property, insofar as he has taken something that doesn't belong to him and because he has deprived the owner of the money due him for that property.

The first part of this sentence is almost something of a contradiction; either an action constitutes theft, or it doesn't. The second point assumes that the person downloading would have paid for that which they took for free. This is a leap that I remember being explored in a column by Thomas Sowell, of all people, rebutting a piece written by Jerry Lieber (if I recall) that suggested that x number of downloads on Napster deprived him of y number of dollars. We can on some level agree that this is all wrong in many ways, but there is the law to consider, and in applying it one cannot assume that downloaders would have actually been paying customers.


>I might add that counterfeiting money is not theft either, since neither the government nor anyone else has been deprived of property, and yet it is a crime precisely because it lessens the value of money (why else ban it).


Yet copyright infringement is a civil offense, not a crime. Illegal, yes. Criminal activity, no. And counterfeiting is a significant aspect of physical piracy...which is a crime. You can be arrested for creating and selling illegal physical copies, or bootlegging otherwise unavailable material such as live performances. You can't call the police on downloaders or uploaders. Napster was shut down, but there was no criminal charges or trial.


>I am a mathematician, not a lawyer, so I will not argue the legal distinctions you bring up, but morally I don't see a difference.

I think there is a slight distinction: pirates copying physical product for profit is very different from fans who are engaged in illegal file-sharing even if they don't care that they are contributing significantly to a major threat to the careers of their favorite artists. The issue is more complicated than just marshaling anger at a nation of freeloaders who don't know or care what they do, or the effect it has on people they actually admire.


>I don't understand why uploading is illegal and not downloading; to me they are distinguished in the same way that selling stolen property is different from buying it.

I wish I could address this better. It's not that it's legal to download and therefore create an illegal copy, but it seems to be more actionable to then possess that file, thereby making it available to others. Remember, the RIAA lawsuits were based on their client downloading files from people who made them available. Those files could have been from the CDs of the defendants, and hypothetically the defendants might never have actually downloaded anything they didn't pay for. I would guess the idea of going after a person who has illegally obtained music is either too logistically difficult, or would involve technologies that are actually not legal. After all, who can scan your computer legally looking for music files you may or may not be in possession of legally? However, if you're on a network where others can download from your computer, you have allowed access to part of your computer.

I believe that torrents offer even more anonymity than gnutella programs like kazaa and limewire did, but I honestly don't know the particulars there.

Three Chord Monty said...

>In any case, to the extent that any of this is not illegal, that is only because the laws do not so specify, and that can change. The real question, then, is whether it should be illegal. It seems to me the answer is yes.

Well, that seems like an obvious argument. But then you have to deal with little, piddling inconveniences that people like the Electronic Frontier Foundation are going to bring to the table. Such as the (likely miniscule) percentage of people sharing files in a manner that does not constitute infringement. Or, if one cannot create a copy over a network, then how does one not consider making a digital copy for personal use non-infringing? I mean, I can buy a CD, and rip the files to my computer (already considered to be an infringing use by the RIAA, though that's not something they're going to litigate even though their stated position is that this constitutes illegal activity), and then create another copy on my MP3 player. That's two 'illegal' copies--and while it is a thin argument, this is considered to be unauthorized copying, and therefore illegal. But that's a technicality even though it's been explained to me that the reason that the RIAA would not engage in legal action is not because making a copy for personal use falls under Fair Use; I honestly can't remember, but I think it might have been related to 1992's Audio Home Recording Act.

Regardless, do you remember the 'Home Taping Is Killing Music' campaign from about 30 years ago? Recording albums onto cassettes was considered morally wrong, and it was definitely illegal even if nobody was being sued over it. Taping songs from the radio onto a cassette for personal use? Absolutely illegal. The record labels wanted a tax on the sale of blank media such as cassettes, and there was an interesting conundrum created when Sony, which manufactured both blank media but also the machines that played them, acquired Columbia Records. That was about the end of 'home taping is killing music!' However, taxes were in fact levied on blank CDRs made for standalone audio CD burners, and that stands to this day.

The music industry blocked DAT for the consumer market...which probably had something to do with CDs replacing LPs as quickly as effectively as they did (approx. 5 years, give or take). Is it possible that if they had allowed DAT--which allowed a perfect digital copy--to enter the market and likely replace cassettes, perhaps things fall differently. Technology would have won out eventually, but perhaps DRM would have been more accepted (few complained about Apple's iTunes DRM) if its creation hadn't lagged so far behind the proliferation of the MP3 format, and its implementation hadn't been lazy, careless, and dangerous, as it was when Sony decided that taking a closer look at what Suncomm and First4Internet were handing them wasn't worth the time. Of course, there are tales told of how the RIAA's labels rejected the idea of entering into any deals with Napster-like entities. And where they were successful in blocking DAT, their actions against the Diamond Rio blew up in their face in a big way.

When 'home taping was killing music,' if someone made a cassette copy of an album, it was an action they had to do pretty much one at a time, which meant that it was unlikely anyone was making copies to give to 10 friends or more. With 'downloading,' one makes an album available to how many people? There's a crucial distinction, to revisit an earlier point. The idea of thinking of this as wrong is the easy part. Overlooking the many foibles of the music industry is not quite as loud an argument, but it is also not a difficult position to stand behind.

Understanding the law, and coming up with solutions, is what has been lacking. I wish I had better answers myself. But I know the discussion has to, absolutely has to, consist of more than thinking or knowing that it's wrong, or even understanding why.

John Wenger said...

Wow, I am impressed at the depth of this argument, and I am astonished that Three Chord Monte is not a lawyer, since this is a very lawyer-like dissertation.

I have to admit I don't follow the entire argument, especially the distinction made between something being illegal but not constituting a crime. Since I am concentrating on the morality of the situation, I will let all of that pass.

You say an action either constitutes theft or it doesn't, and while I have a professional obligation to acknowledge the law of the excluded middle, I have to say that stealing the music is the theft part, but not stealing the physical representation is the non-theft part. I see no contradiction in saying that in this sense we have a partial theft, i.e. the guilty party is stealing something, but not everything.

You make the argument that I am assuming someone would have bought an item if he had been unable or unwilling to copy it, but I make no such assumption; the sort of copying we are talking about is wrong either way, just as boosting a shirt is wrong whether someone would have bought it or not: if you take something that isn't yours, it is wrong even if there are no adverse monetary consequences to the victim, since he is losing control over something that is his.

I don't understand the technology you are referring to, so I can't comment on your closely reasoned statements after this, except to say that the fact that certain of my statements raise troubling questions is undoubtedly true. This happens all the time in the law, which is why we have lawyers to argue the issues and courts to determine the answers.