Let's be clear from the beginning. If the RIAA's complaints are accurate, these kids are plain, run-of-the-mill idiots. They weren't simply trading files; they were running independent networks, allowing massive numbers of people to trade files. Specifically, the RIAA is charging that the four networks distributed 27,000 files, 500,000 files, 650,000 files, and over a million files, respectively. That's a hell of a lot of pirated music. To use a common analogy: These four were dealers, not simply users.
You have to be pretty stupid to do that sort of thing, today. Think about it: These kids watched Napster burn in flames, courtesy of RIAA lawyers. They watched KaZaA become the next big thing -- and presumably, if they were savvy enough to set up their own P2P networks, they were well aware of the media attention haunting KaZaA. Nevertheless, each of these four decided to sit in his college dorm and set up his own little "Napster," servicing hundreds of thousands of users. If true, this amounts to basically dialing up the RIAA and inviting it to help itself to your future earnings for the next 860 years.
The RIAA is seeking the maximum legal penalty -- $150,000 for every copyrighted work that was downloaded. If successful, the students would lose something in the neighborhood of a hundred billion dollars. Divide that by four defendants, and...yup. They're all still pretty well fucked.
But really, we don't care about them. The reason this story reverberates so loudly across the net is the reason the RIAA filed these suits in the first place: We're all left wondering, "Who will be next?" Is file-trading worth the risk of being dragged into a massive lawsuit? Such suits, even if frivolous and unsuccessful, can easily bankrupt any defendant. For that matter, who should win? Is "piracy" really a bad thing? Who does it harm, and why should you care?
First, let's dispense with the terminology question. I do think it's funny that the RIAA refers to file-sharing as piracy 364 days a year, then drops the term when its minions visit the US Naval Academy...but that aside, the word "piracy" has become a legitimate term for the practice of file-sharing copyrighted works. See Merriam-Webster: "the unauthorized use of another's production, invention, or conception especially in infringement of a copyright." I don't use the term, personally; but arguing that it's improper is a losing battle.
The file-traders' bottom line is pretty simple: "We hate the RIAA." Their two most common arguments are:
- "We need P2P, because the RIAA and Clear Channel control the radio. Everything on FM is the same, and P2P is the only way we can discover independent music."
- "The RIAA isn't losing any sales. Most of the songs we download are just singles we heard on the radio. We only wanted each single, so we wouldn't have bought the complete albums, anyway."
So the great benefit of P2P is that you can discover new, independent music...but all you ever use it for is to download popular singles? Can you say, "mutually exclusive"? Either you're getting for free music you would have paid for, or you're not. Step away from the microphone, and make up your minds.
Both arguments, of course, are jokes. I own several thousand CDs of independent music, all of which I managed to discover without the benefit of P2P. Clear Channel became a giant by giving listeners exactly what they want: simple, straight, unconfusing pop music. People want lyrics to sing along to, and 4/4 or 6/8 rhythms that keep their feet tapping. Their idea of "different," from decade to decade, is changing the instrumentation a bit. A song had better be catchy, it had better be repetitive, and it had better be tonal, or else it's not going to get airtime. People simply don't want to hear it.
Don't take my word for it. In the past two years, the record companies have watched their sales growth begin to decline. Immediately, they cut the dead wood. Every major label slashed or eliminated their jazz divisions. Classical music now makes up barely a fraction of their budgets. If you're recording Bach or Mozart, you might have a shot; but you won't find Ligeti or Lutoslawsky on any major labels. Record companies know where the money is. I laugh at people who say, "I like all kinds of music." Invariably, they start rattling off names of pop artists who, to them, sound distinctive -- J.Lo, Puff Daddy, Dave Matthews, Eminem, etc. If it doesn't follow the pop formula, people simply don't want to hear it.
That brings us to the file-traders' second argument: they're only downloading these pop singles because they wouldn't buy the albums, anyway. Well, the record industry phased out short-playing records in favor of LPs long ago, because their market research proved: Spending a bit more to produce a longer album yielded greater profit, because people would indeed pay more to own singles they heard on the radio. Anyone who says people won't buy full-length albums just to hear one or two songs is flat-out wrong. I spent three years working in a record store, and I watched thousands of customers do exactly that. And compilation series like "Best of the '80s" and "NOW" successfully cater to the few stragglers who demand "greater value."
That same market research has been proved repeatedly in the decades since. Cassette and CD singles were both tried valiantly, because the public insisted they would buy more music if they could buy only the songs they wanted. A program was even offered in the late '90s allowing customers to program their own CDs, selecting their favorite popular singles and paying accordingly. Record companies eventually lost quite a bit of money on these ideas. In fewer numbers, singles continue to be mnufactured today -- at a loss. Had they been remotely successful, they wouldn't have been phased out. If you don't want to take the RIAA's word, take my firsthand experience: On a good day for singles sales, they're still outnumbered 20-to-1 by full-length album sales.
So, the question: "Is file-sharing 'stealing'?" Again, Merriam-Webster: "to take or appropriate without right or leave and with intent to keep or make use of wrongfully." Unless you pay for copyrighted music, legally, you don't have the right to possess a copy. So yes, if you're downloading copyrighted music across unregulated network, then you are stealing. "Duh."
The immediate response: "We're helping bands. Artists rarely profit from albums, anyway. They profit from touring, and sharing their music online helps promote their shows." Well, that's a very polite argument, Robin Hood. Record companies may hoard album profits for themselves; but right or wrong, what they're doing is legal, and what you're doing isn't. And whatever your motivation, whomever you may be "helping"...stealing is stealing. Just because you feed the poor doesn't mean you're not stealing from the rich.
But the basic point misunderstood by nearly every file-trader is that copyright law isn't designed to protect money. It's designed to protect control. By file-sharing an artist's copyrighted music, you are violating that artist's right to control his own work.
Again: "We're helping artists. Increased exposure is good." Well, one man's dream is another man's nightmare. I can think of any number of reasons why an artist might not want his music shared online. Maybe he feels embarrassed by the quality of an early album, and he doesn't want it expanded beyond its initial release. Maybe he's decided to change direction, musically, and he doesn't want continued circulation of his older works. Maybe he feels that MP3 compression unacceptably distorts music, and he doesn't want his songs distributed in that format. Hell, maybe he originally released 64 copies of an album as part of a conceptual performance artwork, and expanding its circulation will somehow violate the integrity of that work.
Ultimately, an artist's reasons for wanting to limit distribution of his music are none of your damn business. Copyright law gives him the right to do that, if he chooses. And the moment you become a distributor of copyrighted music, you are violating that right.
For the record: Any unauthorized distribution is a violation of copyright law, whether or not you profit from it. You have the right to buy a copy of the new Britney Spears CD. You have the right to burn copies of that CD for your work and car, if you like. You even have the right to burn 20,000 copies of that CD and stack them in your bedroom, if that happens to be your fetish. But as soon as you hand one of those copies to another person -- literally, or online -- you have become a "distributor." Whether or not you accept money is irrelevant. You have no right to distribute someone else's copyrighted work.
File-sharing isn't a simple issue. It involves a direct conflict between legal precedent and technological advances. As with any complicated issue -- abortion, capital punishment, chocolate or vanilla -- there is logic on both sides, and any "simple" decision is probably either ignorant or self-serving. Certainly, the major studios are guilty of underhanded tactics in the copyright battle. Both sides are guilty of their shares of ignorance, dishonesty, and refusal to listen. But the file-traders are lauded as folk heroes, while the record executives are burned in effigy. And that's just bullshit. If Aaron Sherman, Jesse Jordan, Daniel Peng, and Joe Nievelt are indeed guilty of the RIAA's allegations, then they're guilty of violating other people's rights without reason or justification, solely for their own benefit. And that behavior should never be celebrated.
If you're trading copyrighted works, you're breaking the law and violating people's rights. If you feel fine about that, that's your prerogative. But stop whining about what file-sharing isn't. It is stealing. It is unlawful distribution. Claiming otherwise doesn't support your position. It just proves your ignorance. And it's difficult to respect someone's actions when he hasn't gone to the trouble of understanding them.
Some K5 responses I've read:
Why should I buy CDs when I can get them for free?
So if the police, tomorrow, announce that they will stop enforcing shoplifting laws, will you stop paying for clothes? Technically, it's still stealing. But by your logic: "If I can get away with it, why shouldn't I"?
If you're going to file-share, that's your prerogative. I drive over the speed limit all the time, and I wouldn't want another civilian bitching at me about it. My point isn't to talk you out of doing something. My point is, you should at least be mature and responsible enough to acknowledge what you're doing. Until you are, it's difficult to take you seriously. Your argument is basically, "It's easy, so it must be OK." And that's pretty stupid.
When I'm forced to special order CDs from a warehouse, that signifies to me that the owner of the song is no longer really interested in making money from it, and therefore, I don't see what the problem is with my downloading it.
Well, then you've either missed or ignored a major point: CONTROL.
You apparently think you have a "right" to obtain anything you want -- and if it isn't easily found for sale, then it's OK if you steal it. So your favorite '80s record isn't available anymore. You don't think the artist or record company has the right to pull a product from the open market?
The phrase "forced to special order" clearly implies that you're not a fan of independent artists, so I'll assume you're not going to pretend that you care about their interests. 99% of the music I buy is independent. Much of it, I've never seen in any record store, anywhere. I buy CDs online, and from mail-order advertisements usually placed by the artists themselves. Saying "forced to special order" is like saying you were "forced" to drive to the next town to avoid shopping at Wal-Mart. Those of us who do it, do it with pride.
For the sake of argument, let's take your example a step further. Let's assume that the album in question isn't available, anywhere -- at retail, online, or from used CD sellers. You're arguing that (a) because the album isn't available, the artist isn't losing a sale; and (b) by taking the album out of circulation, the artist essentially "forced" you to download it. Again: Control, not money, is the primary motivation behind copyright. (Money follows as a result of control.) Copyright law grants an artist the right to decide that he doesn't want to distribute his album any further, regardless of whether there happens to be another person who would like to own it.
As you point out, major labels have slashed their jazz division. Other than P2P, where else am I going to get jazz if that's what I want?
If you're sincerely interested, email me and I'll send you about a hundred links. For the record, all but the real underground albums are available at Amazon, CDUniverse, HMV.com, etc. Most smaller labels are actually quite hip when it comes to the online marketplace. Failing that, unless you live deep in the heartland, there's probably a store nearby with a knowledgeable clerk or buyer.
But again: If every jazz artist and record company decided to fold up tomorrow, copyright law says they can. You have no "right" to acquire jazz CDs. I think it's great that you want to, and I wish you luck...but if you use P2P, you're probably violating someone's copyright.
My main objection is that, overwhelmingly, it's not about the artists controlling their music; it's about the RIAA controlling their music...
You're right. But the RIAA exercises that control only after it has been contractually assigned to them. I could have written "copyright owner" every time I made that reference, instead of artist; but (a) "artist" was easier, and (b) for most of the music I listen to, the artists do own the copyrights.
And that's part of the point: to illustrate that file-sharing violates the rights of independent artists just as it does the RIAA. Yes, there may be artists like Janis Ian who don't mind, because they welcome the attention. But we shouldn't ignore the rights belonging to half a group just because the other half is willing to throw those rights away. After all, that's our argument against the PATRIOT act, isn't it?
j harper writes:
...studies have shown that P2P downloading is not the overarching cause of the decline in recent music sales.
I don't believe it is. I have little sympathy for the RIAA's "music sales statistics." First, they began protesting P2P by misrepresenting a decline in sales growth as a decline in sales. Second, their profit strategy is based on selling the same products, repackaged. LPs became cassettes, and cassettes became CDs, and the customers lined up to buy replacements for their old favorites. The RIAA has kept CD technology at a standstill, while every other technology in our culture has flown past. They continue to furiously repackage: "digitally remastered," "previously unreleased tracks," etc. There's a very legitimate argument to be made that P2P's is Darwin's "natural selection" eliminating the RIAA, which has refused to evolve.
You're absolutely right: the RIAA gouges everybody. If the RIAA crashed and burned tomorrow, I'd be happier than most people, because then my favorite artists might get more attention. Breaking the RIAA's stranglehold on the music industry is a laudable goal. But we shouldn't pursue that goal at the expense of Constitutional copyright law. "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." I believe in that, and I believe it's worth preserving. And that's my bottom line.