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“The law is wiser than cabal or interest.”
Edmund Burke, 1794

This week the Motion Picture Association of America (MPAA) launched an ad campaign using the slogan “copying is stealing,” attempting to convey the message that digital copying is as serious and criminal as stealing a CD from a record shop or a DVD from a video shop.

So, is music (and video) piracy stealing? The short answer, as the MPAA and the Recording Industry Association of America (RIAA) will be quick to tell you, is “yes.” Under current copyright legislation, downloading music for free is definitely theft under letter of the law. But is the law just and fair? That’s the operative question, and the long answer is more complex.

Two-thirds of Internet users who download music are unconcerned that they are violating copyright laws, while only 29 percent say they do care and 6 percent have no opinion on the issue according to a new Pew Internet and American Life Project survey released last Thursday. Not only that, the number of downloaders who say they don’t care about copyright has increased over the past year, from 61 percent to 67 percent. A slightly smaller percentage (65%) of respondents who share files online (music or video) say they don’t care whether the files they swap are copyrighted or not.

Pew estimates that roughly 35 million American adults use file-sharing software, about 29 percent of Internet users, and that 26 million share files online. The survey notes:

“Young adults are the least likely to express concern about the copyrights of the files they share with others, with 82% of file-sharers aged 18-29 saying they don’t care much about the copyright status of the files they share. Those aged 30 to 64 are more likely to express concern about copyrights, with about 2 in 5 file-sharers in those age groups saying as much. Nevertheless, in each age group, a plurality if not an out right majority of each group say that they are unconcerned about the copyright of the files they share online.

“Students, both full-time and part-time, who share files, say they are not concerned about the copyright status of the files they share with others online. Eighty percent of full-time students and almost three-quarters of part-time students say they do not care whether the files they share are copyrighted or not. Fifty-nine percent of non-students say the same.”

“Full-time students overwhelmingly express a lack of concern over the copyrights of the files they download—4 out of 5 say they are unconcerned.”

“...college grads are the most likely to express concern over copyright amongst file-sharers. Those with lower levels of education are much more likely to express very little concern, and even amongst college grads, a majority (56%) say they don’t care much about copyright.”

In an AP article on the Pew survey, the RIAA comments that it’s recent blitz to “educate” file-swappers and music downloaders by randomly suing them will result in more compliant attitudes. I beg to differ. The litigation fascism drive will mainly serve to further alienate and polarize a consuming public which already is growing to despise the recording industry. Some people may be deterred from sharing and downloading music, etcetera, out of fear, but that amounts to legal terrorism -- not “education.”

As the Pew report notes, “Americans’ attitude towards copyrighted material online has remained dismissive, even amid a torrent of media coverage and legal cases aimed at educating the public about the threat file-sharing poses to the intellectual property industries.”

I don’t think very many folks are unaware that music is copyrighted, or that unauthorized copying is illegal. It’s just that, as the Pew survey indicates, they don’t care, just as most people in my experience suffer no ethical pangs about photocopying pages from reference books borrowed from the library, or song sheets for their church choir, or copyrighted materials to distribute to their school or college classes, all of which are just as illegal under copyright legislation as downloading pirate MP3s. Literally millions of people who would never dream of shoplifting a book, album, or packaged software item, seem to have no ethical qualms about photocopying books and magazine articles, or downoading music. How do we explain this?

I think one reason is that it is perceived as a victimless crime. I know that music industry people will vigorously disagree, but if someone copies a song, the copyright-holder may or may not be out of revenue he or she might have realized if the item had been purchased, but is not left without something he or she once possessed and now doesn’t. That is, the copyright holder is no worse off materially than he or she was prior to the piracy. I’m not trying to construct a moral justification or rationalization for piracy here -- just illustrating that it is a stretch to call software or music piracy “stealing” in the sense most people think of theft.

The average person would regard going into a store and pocketing a tangible piece of physical property is as something essentially different from copy piracy. The human mind finds the concept of intellectual property much more abstract, slippery, and nebulous than the concept of physical property. I think it would be accurate to suggest that when most consumers buy a book or CD recording, their gut perception is of having purchased a physical item more than the concept of its intellectual content. Of course, with say, a CD, the cost of the physical medium represents a small fraction of the purchase price, but that gut-perception is still that property is something one can see and touch and keep, even for people who intellectually know better.

And of course, if a burglar breaks in and steals your CD collection, there is no mechanism in place by which you can restore it for the cost of the lost physical media, so perhaps, in practical terms, the ol’ gut has a point.

Intellectual property piracy is a tough issue to sort out ethically, and I suspect that most people don’t really bother to try. My guess would be that very few people reading this could honestly say that they have never made a photocopy of copyrighted material, taped a favorite song from a friend’s record or CD, pirated a piece of software, or “forgotten” to pay a shareware fee. So are we all thieves or not? Some would emphatically answer “yes!,” and they have current legality on their side, but as I said going in, I think it’s more complex than that.

Personally music piracy is not a big part of my life. Like many people with a computer and an Internet hookup, I experimented with downloading MP3s during the Napster era, but didn’t do a whole lot of it, and I think in the past two years I’ve downloaded a grand total of two songs, while testing file-sharing client software for review.

However, like many people, I used to make mixed audio cassette tapes of music I like from LPs belonging to friends and relatives, and I confess to taping movies and sports events on TV to watch later. So, I’m a copyright pirate of sorts I guess, just like virtually every other North American in one context or another. As I said, there are few computer users and Internet surfers who could look you straight in the eye and honestly tell you they have never pirated anything.

However, my central interest in this issue is philosophy, not piracy, per se, to wit: the threat to the free exchange of information over the Internet and otherwise that draconian copyright laws engender. I have come to question conventional wisdom as to the philosophical legitimacy of copyright laws as they’re currently written in a broader context as they pertain to the public interest and to inhibition of information exchange.

Some people tell me, that music piracy is just plain wrong, period. I think that in this instance they may be confusing the distinction between “it’s against the law,” and “it’s wrong,” since the moral basis for determining that it is wrong is the legitimacy or otherwise of copyright legislation.

Now some people would argue that whatever the law says -- breaking it is always wrong. That is a philosophical stance with some integrity, but it founders in the instance of unjust laws. History is littered with bad legislation, and many laws have been downright immoral.

One that isn’t law yet, but soon could be is Congress’ proposed Author, Consumer and Computer Owner Protection and Security Act which proposes to make it a felony if you upload even just one measly infringing copyrighted work to the Internet.

Got that? One contraband MP3 in your shared peer-to-peer software directory, and you’re a felon. Hello jail! Post a newspaper article or copyrighted photo to your blogsite -- whoops! -- you’re a felon too.

As CNET News.com’s Eric Goldman noted this week,

Indeed, whatever the morality and ethics or lack of that music piracy represents, ruining the lives of individuals for petty non-commercial copyright infringement is vastly worse. It is plain wrong, however legal. Elected representatives need to do some serious soul-searching about who, and whose interests, they really represent, and lose the indignant anger at the American public for continuing to infringe,

It’s just not that simple. Particularly in the area of laws governing commerce, the law usually has more to do with protecting vested interests that enjoy political influence, often bought and paid for, then it does with morality.

A good analogy is that of genetically modified (GM) foodstuffs, which enjoy intellectual property protection analogous to that pertaining to music, pictures, or prose. Currently 80% of the patents on GM foods are owned by just 13 corporations globally. Companies engaged in bio-technology pressured government for, and got copyright-like intellectual property law to cover life forms, and in 1985, the US Patent & Trademark Office allowed genetically modified plants, seeds and plant tissue to be patented. Corporations can now acquire the knowledge of generations of indigenous farmers, and then, after subjecting this knowledge to scientific analysis, take out patents on the resulting product. Each ‘improvement’ in farm crops, whether by hybridization or genetic modification, tends to reduce bio-diversity and to marginalize those crops which in the present agricultural and economic context are regarded as unprofitable. These varieties are also the traditional crops on which the poor depend. That would be bad enough.

However, transnational companies have acquired the right to patent GM seeds, which means that farmers will be locked into contracts to buy both seeds and chemicals, and not allowed to plant the farm-saved seed. Farmers who switch to GM seed will have to sign a gene licensing agreement, which specifies royalty fees and dictates the seed, fertilizer and chemicals to be used. These agreements prohibit the storing of seed for the following season, locking the farmers into a perpetual, subservient, client relationship with the big chemical companies. It’s all perfectly legal, but don’t try to convince me that it’s ethical or moral.

In genetic engineering, only a tiny fraction of the make-up of the organism can be said to be a product of the scientist. The organism is still essentially a living entity, not an invention. Notwithstanding the considerable investment involved in research and development, the identification of a gene’s function is not an ethical ground for claiming exclusive rights. Even though intellectual effort has been used, it is of the nature of discovery, not of invention. I would say the same applies to music, which some consider food for the soul. Music is an arrangement of notes and sometimes words as well, but the vast majority of it is highly derivative. The notion that sounds or combinations of sounds can be private property is a nebulous one at best that no one should accept uncritically at face value .

Listening to rhetoric from the RIAA, et al, you might infer that copyright laws had been handed down on stone tablets by the Almighty. They were not, of course, and not everyone in the world bestows upon the abstract concept of intellectual property rights the quasi-religious reverence they are accorded in corporate boardrooms, litigation lawyers’ offices, and the US Congress. Copyright laws are merely an arbitrary and mutable legislative construct, and do not necessarily carry any objective moral weight.

The view that “theft” of intellectual property is tantamount to grand larceny of the highest order, that should be subject to commensurate penalties, is a reflection of a particular philosophical mindset, but unlike theft of real, tangible property, it involves a necessary value judgment.

Copyright laws pertaining to music are especially draconian. I am no expert, but as I understand it, even quoting a few words or a phrase from the lyrics of a copyrighted song is illegal without permission, unlike prose, where fair use can run to hundreds of words. That speaks volumes about the success of the music-biz lobby in getting legislators on side.

This fight is ultimately about money and power and control -- over what you will be able to see and read and watch and listen to, and how it will be delivered, and who will make money from it. It is about protection of vested interests, not just protection of artists’ intellectual property.

In the U.S. context, Article I, section 8, clause 8 of the United States Constitution gives Congress the obligation to “promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The original U.S. Copyright Act granted copyright-holders the exclusive right to print, publish, and sell a copyrighted work for fourteen years with a second fourteen-year term possible. There were no rights given to the copyright holder regarding the public performance of the work nor could the holder control adaptations or derivative works.

Thus, rather than representing some sort of categorical moral imperative, copyright legislation is rooted in monopolism and censorship, and has, in our time, been expanded in scope far beyond its original intent. In an era of digital communication, I also submit that it has been expanded well beyond its enforceability and sustainability, let alone desirability.

Why should the private interests of corporations exert a veto on entire technologies that offer benefit to the common public good? That is what happened with Digital Audio Tape, which had the recording interests wetting themselves in fearful anticipation of easy, unauthorized, high-quality copying of music until they successfully and selfishly lobbied in the name of copyright protection for restrictions that effectively killed the technology for widespread use, even though it would have offered many legitimate benefits that had nothing to do with piracy. Meanwhile, MP3 technology was ramping up to blindside them, and I have to say that whatever happens now, it has been delicious seeing the cartels get their comeuppance.

There is also a Common Law aspect to the development of our system of law, which in the context of music copyright has been recognized to some degree under the law in both Canada and the US., copyright holders used to insist that ANY unauthorized copying of music recordings was unacceptable, and under the law so it was at the time. The political process and acknowledgment of the reality that music was going to be copied anyway, law or no law, caused the law to be changed. It became legal to make copies for personal use. I expect that there will be further legal developments along these lines driven by popular practice.

The U.S. Constitution and legal system are based on British Common Law, which by definition derives from the common people, as opposed to legislation, which, comes from the “experts.” Ergo: Common Law develops at the root levels of society, and is grounded in precedent and tradition as well as reason; it is not law that is imposed by some authority from on high. Congresspeople: are you paying attention?

I contend that copyright legislation as it evolved through the 20th Century has no grounding in Common Law, and was indeed imposed by authorities on high at the behest of vested interests. Consequently, its legitimacy is questionable, at least at the philosophical level.

An aspect of Common Law begins to obtain when a high enough proportion of society decides that a law is unjust or unfair and chooses to ignore it. The Pew survey estimates that 26 million Americans are music file swappers and downloaders. In practical terms, the RIAA will be able to legally harass and persecute a tiny minority of them under current copyright legislation, which *IS* unjust and unfair, and as noted above grants rights to copyright holders light years beyond what the US Founders ever intended copyrights to do. However, they will not ultimately be able to turn the tide of popular sentiment on this issue.

The development of Common Law is at work when schoolteachers and college professors routinely photocopy copyrighted material to use in class, and advise their students to do the same; when ministers of religion photocopy copyrighted material to distribute in church services; when everybody and their dog photocopies stuff from magazines and library books for personal reference or to hand out to their friends (not to mention all the stuff that gets scanned into computers and distributed over the Internet); I submit that copyright law in its late 20th Century iteration is no longer working or workable.

The real conundrum is how to ensure that creators of intellectual property can be fairly compensated for their work given the technological realities of our time. I don’t have the answer to that question, but perhaps the orientation should be to abandon the futile fixation on prohibiting unauthorized private copying and think of more innovative means of compensation and protection. As I said, I haven’t got the answer, but it surely isn’t the tactics and strategy being pursued by the RIAA and its fellow travelers in government.

In summary, the point I have been trying to make over several years now of writing and commenting about copyright issues: The letter of copyright law, as it is currently written, is becoming irrelevant in practical terms. Recording companies and publishers are never, ever, going to be able to regain the tight, top-down control they once had over copying and distribution of intellectual property, no matter how many lawsuits they launch or friends they make (buy?) in Congress.

I guess, ultimately, my argument is that legalities, ethics, and so on aside, in practical terms you can’t defy gravity. The litigants will be able to punish some pirates through great legal effort, but they won’t end piracy, and even if they could it would be tragically bad news for the freedoms of speech and information exchange.

Copyright as we knew it in the 20th Century is doomed. It will still be able to thrash and writhe for a while yet in its death throes, and cause a lot of collateral damage in the lives of certain individuals, but it is ultimately dead meat.

Pew Internet and American Life Project:
http://www.pewinternet.org/

‘Golden Age of Free Music’ vs ‘Copying is Stealing’
http://www.theregister.co.uk/content/6/32199.html

Charles W. Moore