Monday, August 25, 2008

Is Stealing Music Wrong?

This post is largely in response to Hanno's request that I address whether stealing music is wrong. Specifically, stealing music digitally (p2p or peer-2-peer networks such as Limewire or Kazaa). However, a simple yes or no will not suffice. Stealing a physical cd from the record store is different than ripping a song off of a p2p site. In the store you are stealing physical property, on the internet you are stealing intellectual property. One of the major differences is copyright law. When you download a song, you are violating copyright law.

My answer to this question is largely shaped by one man: Lawrence Lessig. As he states, The original term of copyright set by the First Congress in 1790 was 14 years, renewable once. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. Who is copyright protecting? Consumers? Artists? Distributors?

Instead of providng a full defense here, I wish to simply begin the conversation by quoting from chapter 11 of Lessig's book, Free Culture:

The more I work to understand the current struggle over copyright and culture, which I’ve sometimes called unfairly, and sometimes not unfairly enough, “the copyright wars,” the more I think we’re dealing with a chimera. For example, in the battle over the question “What is p2p file sharing?” both sides have it right, and both sides have it wrong. One side says, “File sharing is just like two kids taping each others’ records—the sort of thing we’ve been doing for the last thirty years without any question at all.” That’s true, at least in part. When I tell my best friend to try out a new CD that I’ve bought, but rather than just send the CD, I point him to my p2p server, that is, in all relevant respects, just like what every executive in every recording company no doubt did as a kid: sharing music.

But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of “friends” beyond recognition to say “my ten thousand best friends” can get access. Whether or not sharing my music with my best friend is what “we have always been allowed to do,” we have not always been allowed to share music with “our ten thousand best friends.”

Likewise, when the other side says, “File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out with it,” that’s true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower.

But it is not quite stealing from Tower. After all, when I take a CD from Tower Records, Tower has one less CD to sell. And when I take a CD from Tower Records, I get a bit of plastic and a cover, and something to show on my shelves. (And, while we’re at it, we could also note that when I take a CD from Tower Records, the maximum fine that might be imposed on me, under California law, at least, is $1,000. According to the RIAA, by contrast, if I download a ten-song CD, I’m liable for $1,500,000 in damages.)

The point is not that it is as neither side describes. The point is that it is both—both as the RIAA describes it and as Kazaa describes it. It is a chimera. And rather than simply denying what the other side asserts, we need to begin to think about how we should respond to this chimera. What rules should govern it?


This is a great topic to discuss at the philosophy club. My answer can't really be said any better than by Larry himself.

21 comments:

Lee said...

I for one am for the downloading of music. Not just because i practice it religiously, but because i'm for the music itself. I look at it like this: yes, downloading my music from someone else is the recording company losing money. But at the same time i'm not going to go out and buy a CD for the one song that i like on that album. I would just grab it from my friend who has it.

If i like the music of a certain band enough then yes, i will go buy their CD. And yes, i will go to their concerts. I guess this is all a double edged sword and not as simple as i see it. But that's just my 2 cents. I fully expect Mr. Hanno or Lord Matthew to put their 5 dollars into this.

Anonymous said...

You can still pay for the single download ($.99) of a single song and not steal the music from not only the recording company but the band itself.

In this case, I would say you are advocating for theft. Stealing is the illegal taking of another person's property without that person's freely-given consent.

Hanno said...

Well, you are right that neither metaphor is perfect, and both show some truth... but it still does not answer the question.

Let go ahead and grant that it is ok to subvert the copyright laws when they reach the absurdity to which Jefferson referred.

I have never used a P2P netwrok, in part because of the malware etc they come with. But I have copied albums with a tape recorder (and you could make very good copies way with a good recorder way back when). It did take work, however, so now copying is far easier. I never, however, bought an album simply because it was too much trouble to copy. I bought it because I wanted it now, and no one I knew had it or was going to share it.

As a practical matter, i think most copying does not steal from the artist or the record company for the simple reason that i never copied something I might have bought. Instead, I accepted something as free that I might have been curious about, but never enough to buy. I would say that is 99.9% true, and I doubt I am alone.

Also, back in the day, albums were simply a device used to get people to see concerts. That is why radio was so useful in the early days: they promoted the acts which came. Later, folks were able to make lots of money simply from record sales. In some sense, totally free music makes us revert back to the original model, which is not necessarily a bad thing. It promotes performers and bands. It does really hurt song writers, though, as they only get money from record sales.

Hanno said...

How did Mat become a Lord so quickly?

Josh said...

"Let go ahead and grant that it is ok to subvert the copyright laws when they reach the absurdity to which Jefferson referred"

A rather large assumption...but okay.

"As a practical matter, i think most copying does not steal from the artist or the record company for the simple reason that i never copied something I might have bought. Instead, I accepted something as free that I might have been curious about, but never enough to buy. I would say that is 99.9% true, and I doubt I am alone."

Again, a moot point if copyright can be easily dismissed. However, if you believe an artist has a right to profit from their work then your obtaining a copied cd of that artist's work without the artists permission is stealing. Besides, in the 21st century you can "sample" those songs you are curious about in any number of free-streaming audio sites (pandora, etc.) without actually "taking" the album. Technology has evolved in such a way to negate the "curiousity defense."


"Also, back in the day, albums were simply a device used to get people to see concerts. That is why radio was so useful in the early days: they promoted the acts which came. Later, folks were able to make lots of money simply from record sales. In some sense, totally free music makes us revert back to the original model, which is not necessarily a bad thing. It promotes performers and bands. It does really hurt song writers, though, as they only get money from record sales."

True, it does hurt song writers. But that is only if the musicians decide to screw the song writers. If they were fair, they would share the profits from touring.

The original model is actually making a comeback. For example, Madonna famously dropped Warner Music (a record company) for Live Nation (a concert promoter) in 2007. Of course, Live Nation also distributes her music...but they put emphasis on touring.

I certainly agree with the idea of totally free music, but I realize that practically we live in a capitalistic society. The answer cannot be made for musicians as to whether they want to give their music away for free. Which is ultimately the decision you are making when you rip that Bright Eyes album from LimeWire.

On the other hand, we should be building a system where artists have a choice of how much they wish to charge. Radiohead did this with their most recent cd, In Rainbows. They posted the digital files on a site and had people pay what they wanted (the honor system).

Now one could argue that Radiohead can "afford" to do this because they have already capitalized off of the old system (and they aren't greedy).

However, the means of music production and distribution have become widely accessible in the 21st century to any band with a mic and a laptop. In some ways, technology has eliminated the middle man (record companies).

Create a site, post your music, charge whatever you want, and survive on talent. If you are good, your fans will flock. If you suck, well...there is always graduate school.

Hanno said...

? You say it is a large assumption, but I was just agreeing with the section you quoted. A 20 year copyright provides all the benefits to the artist that could possibly be justified. In fact, I think patents have a better claim to protection then artistic work, and patents are shorter by far.

So I have no problem subverting copyrights that are more than 20 years old, which is what I thought you were defending. If not, why did you quote Lessing on Jefferson?

Josh said...

Current copyright generally protects works for the life of the author/artist + 70 years.

You may have no problem subverting copyright, but you need to justify why you believe it is okay to break the law.

I quoted Lessig as a starting point to begin the discussion of our current copyright law. Who is it protecting and who is it hurting?

I advocate for Lessig's idea of a creative commons licences allowing for individual authors/artists to set the terms of use on their own work. If Radiohead wants to give away their music for free it should be their right. If they want to charge $5 for a cd, how can you justify downloading it without paying them $5?

Anonymous said...

A 20 year copyright provides all the benefits to the artist that could possibly be justified.

Huh? If a work is created, it is automatically considered the property of the creator. How can that automatic right somehow have a time limit? Certainly, the creator will have no personal interest after death, but twenty years hardly gets us to that point. Seventy is far closer. A century would make it a guarantee.

And is there a reason copyright does not automatically pass on? Why does intellectual property not somehow get inherited like other property?

I'm not sure I'm in agreement with any of this, but your initial statement strikes me as patently false. Twenty years is not all that can possibly be justified. Indeed, it seems like we could easily justify something like "creator's lifetime (whatever that might be) +20 years". That way, it prevents people from usurping the property immediately upon death, thus allowing the estate to organize things in a way that the creator may have desired them. Although, for that perhaps five or ten years would be sufficient.

Josh said...

"How can that automatic right somehow have a time limit?"

This is an excellent point. It brings up the issue of why copyright is limited.

Jefferson insisted on a 14 year limit on copyright. He would cringe to think that current copyright is the lifetime of the creator + 70 years + a 20 year renewal (thanks to the Sonny Bono Act!)

The reason being is that creative works such as books and music serve a greater function than merely providing financial assistance for the author/artist. These works create the fabric of our culture. Beyond mere dollars and cents, these works spur other people's imagination and innovation through their creation.

Since these products serve a public good, there is a finite amount of time the creator may profit from them. Once the copyright limit is up they enter into the public domain.

The public domain, according to the government, "consists of creative works that are not eligible for or are no longer protected by United States copyright law. Stated another way, this means that works, such as textual material, artwork or photographs, that are in the public domain were either not eligible for copyright protection or are no longer controlled by their copyright owner. Instead, any work that is in the public domain belongs to the public at large."

This allows scholars, artists, and musicians to build upon these works without being saddled with paying out large amounts of money to use them. All of Plato's works, for example, are in the public domain. The reason you can
access good translations of The Republic online (for free) is because it is in the public domain.

Copyright extension of term limits prevents a work from entering the public domain. It prevents others from copying or building upon your ideas without proper compensation.

Jefferson understood that privatizing creative works with an indefinite copyright would put a stranglehold on innovation. This is an idea to consider as you ponder how long term limits should be, or whether we should have them at all.

Hanno said...

You ask how that can have a time limit, and then you put one on.

Inconsistency aside, the assumption follows locke, that if you make something, it is yours. But nothing justifies that assumption, it is just that, and I reject it.

Instead, our rules for property follow benefit to society. Self interest and the protection of property do offer a benefit to society, which is why we have patent laws and copyright laws. But just as with patents, society is benefited at some point by making discoveries more widely accessible.

Patent right run out quickly. i see no reason why copyright shouldnt as well.

Anonymous said...

Copyright extension of term limits prevents a work from entering the public domain. It prevents others from copying or building upon your ideas without proper compensation.

Indeed. That doesn't seem to be the question though. The question is: how can a person somehow "lose" a right? That seems quite odd. Normally, we only forgo (override) rights in times of war or other extreme situations. This does not seem to fit, regardless of public interest. And it's not like we can be guaranteed that any innovation based on a given work will be worth a damn.

People often use another person's work during the person's lifetime--while the copyright is unquestionably in place--as inspiration. Thus, encouraging imagination seems beside the point, because the copyright does not (in practice) seem to actually limit that, save in cases where it appears to be outright stealing.

Since these products serve a public good, there is a finite amount of time the creator may profit from them.

That doesn't necessarily imply a time limit. My property can be ceased in the interest of the public good, but it in no way seems obvious that my music, novel, etc., somehow serves the public good in much the way a reservoir might. I'm not convinced this is a "need" as opposed to a "want". And how does wanting to use someone's work give you a right to it? We typically protect individuals from the mob, not throw them into the thick of it. Everyone and their brother can want my sandwich all day long, yet the state never seems to take it away. Certainly, people have a much greater interest in being fed. Why is my jingle the exception to the rule?

Few works see public domain and then become widely used. Plato is a rare example. There are plenty of hack writers, musicians, etc., who have come and gone, and we don't care one bit that they are now public domain.

Inconsistency aside, the assumption follows locke, that if you make something, it is yours. But nothing justifies that assumption, it is just that, and I reject it.

Inconsistency? Do not make the fashionable mistake of ignoring question marks, key statements, and context. Compromise does not equate to inconsistency.

Rights do follow interest. I thought it rather obvious that I conceded that point when discussing the death of the individual. When my interest has expired, it certainly seems acceptable (and consistent) that my right has as well. It does not follow that my estate will now suddenly lack interest as well.

You are welcome to reject it. That doesn't change the fact that we use it. Rights in this case are not moral language but a social (specifically legal) construction in nature.

Instead, our rules for property follow benefit to society. Self interest and the protection of property do offer a benefit to society, which is why we have patent laws and copyright laws. But just as with patents, society is benefited at some point by making discoveries more widely accessible.

Discoveries? What discoveries? I do not somehow "discover" a new song. It wasn't sitting under a rock somewhere. Please, indicate how you are using "discoveries" in this case. I can understand that this interest will lie with patents. But with a three chord pop song? You have to give me something to go on, because that word simply does not seem to apply.

Anonymous said...

I just watched the Lessig video. If I had known I would get to see Vampire Hunter D doing the Muppets AND George Bush doing Lionel Ritchie, I would have watched it days ago!!!

Josh said...

"Normally, we only forgo (override) rights in times of war or other extreme situations. This does not seem to fit, regardless of public interest."

Free speech is a right, but we muzzle that right given context. The obvious examaple is shouting fire in a crowded theatre. You don't "lose" your right to free speech. On the contrary, the owner of the movie theaters has the right to restrict the conduct of patrons his/her patrons.

Semantically, the term "right" confuses the matter. Copyright should be considered a privilege.

Jacob Hornberger explained the nuances this in terms of broadcasting. He wrote:

"Broadcasting by radio and television stations, by virtue of government licensing, has long been considered a privilege rather than a right. The real value of ownership that radio and television stations enjoy is not in their stations but rather in their government-granted license to broadcast, a license that can be revoked or not renewed by the authorities. It is that license — and the government’s power to determine whether it should be revoked or renewed — that has long been used as the basis for the government’s regulation of the content that is broadcast over the airways."

Of course, with recent media deregulation Clear Channel owns most of the broadcast space (but that is besides the point).

Much like broadcasting, copyright is a privilege given to the author to profit from his/her work. The reason government should be involved is because eventually privatization stifles innovation. As Hanno put it, "society is benefited at some point by making discoveries more widely accessible."

You seem to bristle at the privatization of a three chord pop song? However, just recently The Black Crowes sued Gretchen Wilson for copyright infringement, accusing Wilson of ripping off their song “Jealous Again” in her promo song “Work Hard Play Harder.” This is just one example.

Future musical innovation is stunted if the musicians of the past copyright every chord combination in existence. Imagine shelling out $100,000 in copyright fees to Nirvana for playing chords C, F, and G on your guitar.

If that doesn't drive the point home consider that the copyright for "Happy Birthday To You" is owned by Time Warner company. Happy Birthday's copyright is licensed and enforced by ASCAP, and the simple little ditty brings in more than $2 million in annual royalties.

While the copyright should have expired in 1991, copyright has been extended repeatedly over the last quarter of the twentieth century and the copyright for Happy Birthday is now due to expire 2030.

Best not let Time Warner hear you serenade your mother on her birthday!

Lee said...

I think a handy guide is in order.

http://i13.photobucket.com/albums/a274/funnybunny35/piracy.png

Lee said...
This comment has been removed by the author.
Josh said...

Nice comic Lee! It is true that file sharing is making the copy of the original and simply giving it away for free. However, this leaves the creator of the music open to exploitation. Imagine someone making a duplicate copy of your apartment key and handing it out to every they know. Of course, you still have the original.

It isn't necessarily true that all those people with duplicate copies will break into your house and sell all of your possessions. Yet, nothing is really stopping them from doing so except their moral perfection which they obtained from the ethics course they took in college.

You, as the person who has something invested in maintaining the original key, should be afforded some protection from this possible exploitation.

Unprotected duplication leads to unwanted consequences such as a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation.

If you want everyone in the world to own a key to your apartment it should be your decision - not your neighbors decision.

I believe the answer is moderation and common sense. Luckily, so do the hard-working people at creativecommons.org

Anonymous said...

"Imagine someone making a duplicate copy of your apartment key and handing it out to every they know."

Before people can a copy of your "key" you have to give it out/sell it first. Copies are by no means the same as the original, each one is a little "less/damaged" than the first, so It's technically not the same thing. Now here is what I want to know, do you own those "extensions/damaged copies" for the lack of a better word. I would think not, you own what you made which is the original. Daft Punk made Harder, Better, Faster, Stronger someone makes the same thing but adds in his own text, and suddenly it is his to sell.

Anonymous said...

And to follow on that note, I'm very aware that in "some extreme" cases royalties are paid before hand. But in other cases they are not.

Josh said...

"Before people can a copy of your 'key' you have to give it out/sell it first."

What if I take it from your nightstand from you while you are sleeping, make copies, and return it before you wake up?

"Copies are by no means the same as the original, each one is a little 'less/damaged' than the first, so it's technically not the same thing."

True. Copying an album, depending on how it is done, usually produces a product of inferior quality to the original. However, this only pertains to physical music. You can duplicate the same original mp3 a million times and not lessen the quality.

However, this is besides the point. It is not a question of quality, it is a question of ownership. Given the example of the key mentioned above, the fact that someone owns a slightly less perfect copy of the key to my house in no way excuses the fact that they copied my key without permission.

"Now here is what I want to know, do you own those
'extensions/damaged copies' for the lack of a better word. I would think not, you own what you made which is the original."

I would argue that I own not only the original but every single copy ever made of the original. That is what copyright does...it protects intellectual property.

"Daft Punk made Harder, Better, Faster, Stronger someone makes the same thing but adds in his own text, and suddenly it is his to sell."

Someone did add his own text to Daft Punk's "Harder, Better, Faster, Stronger" - Kanye West. However, Kanye paid massive royalties to Daft Punk to use the sample in his songs (especially since he was selling the song with said sample on his album). If he hadn't he would would have been sued (rightfully so).

Strangely enough, Kanye's use of the Daft Punk song is sampling a sample. The guitars from Punk's “Harder” were lifted straight from Edwin Birdsong’s 1979 song, “Cola Bottle Baby.”

Anonymous said...

Your knowledge of Daft Punk is startling.

TR said...

But has he seen Interstella 5555?