Monday, February 8, 2010

My rambling thoughts on the piracy thing, part 2

Imagine the following hypothetical scenario.

A frail woman in her 90s slowly makes her way down a crowded city street. Suddenly a fifteen-year-old boy comes up from behind her, grabs her purse, and runs.

Take a mental snapshot of the scene. Got it? Great. Let's continue.

The kid rounds a corner, purse tucked under his arm. He's spotted by three police officers. Noticing the purse, which likely does not belong to him, they pursue. Eventually they corner him, grab him, and determine that he is unarmed.

Then they beat him within an inch of his life.

When you took your mental snapshot, you probably didn't like this kid at all. He was just some punk with no regard for the law or his victim. But what if the first time you heard about this, the papers were reporting how he lingered in a coma for two days, and how he may never walk again?

Because the punishment he received was so excessive, you might feel a little sorry for him. He was just a kid! He made one mistake, and now he'll be paying for it for the rest of his life!

Do you see where I'm going with this?

I got some intelligent, beautifully articulated comments on last week's piracy poll. The contributors didn't agree with each other about everything, but on one point there was consensus: fining somebody $25 thousand for illegally downloading 30 songs is ludicrous.

The RIAA may yet win its case—it's won similar settlements in the past—but it has lost the battle for hearts and minds. Now the people inclined toward piracy have the perfect rationalization. They're not depriving artists of income, they're sticking it to the man! And the people who believe piracy is wrong still view RIAA targets as victims. The thinking shifts from "We shouldn't take music without paying the artist" to "Good grief, it's not that bad."

If the RIAA truly wants us to understand that piracy is harmful, they need to make the punishments fit the crimes. Otherwise nobody is going to take them seriously.


GreyLupine said...

Indeed. They're taking a medieval tack on this. When the serfs in a village fail to pay their tithes, the local lord sends his men over to burn that village to the ground, the idea being that all the other villages will be so terrorized that they will pay at once so that the same thing doesn't happen to them.

Thing is, civilization has actually advanced in the last 1000 years (in most places outside of the Middle East, that is), so that doesn't exactly work anymore. Pretty amazing that that was what the cadre of RIAA lawyers came up with as the best approach, though.

Fireblossom said...

Pssssst. I copied a movie. Don't tell the FBI.

John Wenger said...

You have a much better point in this blog than you did in your previous blog, where you erroneously stated that downloading music without paying for it is not exactly theft; however, I'm not sure you are right this time either, and your two previous blogs, when joined with each other, explains my doubts.

Your entire blog can be summarized thusly: fining someone $25,000 for stealing 30 songs is ludicrous. That, in general, is true. The problem is that catching people who do this is so onerous that few people are caught, and when few people are caught, the punishment has to be increased in order to create a credible deterrent. The fact that there is no credible deterrent at present is established by Fireblossom, who would never have admitted to an act of terrorism, for example, because then she would know that she would be pursued.

The fact that certain punishments were used in medieval times is not proof of injustice. The music industry is endangered by illegal downloading, and those who object to the RIAA's methods should suggest deterents which are less punitive but which still work.

Also, your argument is flawed because the example you use has as its hook the fact that the culprit is young, whereas the culprit in the actual case is not young (I assume) and can therefore face the music without blubbering about youthful indiscretions. When you substitute a hardened criminal for your fifteen-year-old boy, the tears dry up a bit. Also, it doesn't help your case that in your example the punishment he suffered was extra-judicial, whereas no one is accusing the RIAA of hiring thugs to beat this woman up.

DeppityBob said...

There went my long, perfect, beautifully-reasoned argument: it was too long to accept. Oh, well.

I'll try to sum up. First, taking her to task for not using an example you agree with doesn't invalidate her example. It's just you trying to redefine the argument to your purpose. Second, it's not theft, it's piracy. Nothing tangible is missing, and no revenue is lost by the record companies: nothing that is stolen is a good which would have provided revenue had it not been appropriated. Pirates, by and large, would not pay for that music anyway. Third, the music industry deserves to die because it's not adapting to the market. Apple proved with iTunes that customers would pay for legal copies of songs at a low price; the music industry felt that the prices should be flexible with higher costs for newer music, but once that was implemented, sales started falling. The overall revenue has increased, but they've created more pirates. It's foolish.

They don't know how to deal with music in the digital age and they're clinging to an obsolete business model. The album is on its way out: people don't want to be forced to buy bundled music at high prices when there is only one song they want. They don't want release schedules determined by companies, they want music released when the artist wants to release it. They want music without the interference (read: "Give us a hit OR ELSE!") of corporate suits. The democratization of popular music is here, and they can't adapt to it. From a business perspective, they deserve to fail.

DeppityBob said...

One other point...I find your argument on the severity of the punishment to be, well, kind of silly. Asserting that some medieval punishment may have been just is probably not the best tack to take, and equating Fireblossom's cheerful admission of having pirated a movie with an admission of terrorism is just ridiculous. It does mean that there is no effective deterrent for piracy, but the problem is that the RIAA is going about it all backward: instead of going after the piracy-for-profit industry, they're coming down like a ton of bricks on a very small number of people who pirate for personal use, not profit. Their focus is wrong, and their methods are stupid: the risks are ultimately so low that the opportunity outweighs the punishment manyfold.

They need to abandon the album format as mandatory, adapt to digital reality, and make their punishments fit the crime. (By the way, in Susan's example, the punishment received by the thief may have been extra-judicial, but that didn't make it extra-legal. If it's applied by enforcers of the law, it has the weight of the state behind it, whether it is right or wrong. Certainly the RIAA has that weight behind it, since its fines are decided by civil court.)

cinderkeys said...

Dep has defended my points even better than I could. I'll just reiterate a couple of things:

The problem is that catching people who do this is so onerous that few people are caught, and when few people are caught, the punishment has to be increased in order to create a credible deterrent.

I suppose it's possible that fewer people are illegally downloading because of the excessive punishments. Even if that's true, I'd bet the rewards are offset by the contempt that's generated by the punishments -- and the perception that piracy isn't really that big a deal.

The fact that there is no credible deterrent at present is established by Fireblossom, who would never have admitted to an act of terrorism, for example, because then she would know that she would be pursued.

Fireblossom never would have admitted to an act of terrorism because someone would have turned her in immediately. I'll bet that it's more onerous to pursue suspected terrorists than downloaders.

Also, your argument is flawed because the example you use has as its hook the fact that the culprit is young, whereas the culprit in the actual case is not young ...

One of the first people they went after was Brianna Lahara, a 12-year-old girl.

But that's beside the point anyway. I wasn't making a direct analogy between pirating music and mugging somebody. I was arguing that when culprits meet with excessive punishment, many of the people who would have condemned them will feel sorry for them instead.

I stand by the argument you eloquently summed up: a $25,000 fine for downloading 30 songs is ludicrous.

John Wenger said...

Deppity Bob's main point is that the music industry has a bad business model. So what? They are entitled to their model, and if it proves not to be sustainable, then they will fail. That's capitalism.

I did not take Susan to task for an example I didn't agree with. I objected to her stacking the deck by making the assailant young and subjecting him to punishments prohibited by law and the Constitution.

I don't know the difference between theft and piracy, but while you are defining it for me, explain what the moral difference is. The musician or the company backing him is still losing money because people are not buying their material.

Where did I ever equate an act of piracy with terrorism? I never said these were equally bad; in fact, my point was based upon the extreme difference between them. My point was that the extreme PENALTY for terrorism made it deterrable, and the point of law enforcement is to prevent crime as well as to punish it.

Cinderkeys argues that the punishments are counterproductive. That is not on point; the question was whether what the RIAA is doing is unjust.

Of course it is more onerous to pursue terrorists, but that isn't the point either. The point is that the onerous punishments help deter the crime.

What happened to the 12-year-old? I'll bet they cut her a better deal because of her age. In any case, the question isn't whether sympathy diminishes with punishment but whether the penalty is reasonable given the circumstances. Since it is so hard to track these people down, I say one can make a decent argument that it is.

cinderkeys said...

The punishment should fit the crime. It should not be determined by difficulty of deterrence.

Spitting on the sidewalk used to be illegal. I imagine this was an even easier law to evade. Should they have fined people the equivalent of $25,000 for spitting?

John Wenger said...

When cinderkeys says that the punishment should fit the crime, she fails to take into account that there are different interpretations of what that means. It could mean (and she does mean) that the severity of the punishment should fit the severity of the crime, or it could mean that the severity of the punishment should consist of what is necessary to deter the crime. It seems to me that both elements should come into play here, and that makes the determination more difficult.

Still, as an artist cinderkeys has to acknowledge that depriving an artist of just compensation for artistic work is a serious offense, far more so than the fairly trivial one of upsetting the sensibility of someone who finds spitting distasteful.

I am not denying that the proposed fines are far in excess of the value of what has been stolen, and it seems to me that the penalty could be more carefully crafted to deter someone without bankrupting them. Perhaps a short stay in jail or a week's worth of community service or the like. But if the penalty doesn't deter the action, what, short of surrender, do you suggest?