Music Downloading as a Matter of Conscience

29 Dec ’04

Via Tech Law Advisor, a reference to an article on NorthJersey.com by James Gibson, who "teaches intellectual-property and computer law at the University of Richmond (Va.) School of Law, and who wrote a brief in which a group of law professors urged the Supreme Court to hear the Grokster case."

Gibson makes the point that at heart downloaders know that what they are doing is wrong, and that they fashion dishonest intellectual justifications to defend their conduct.  For example,

"Information wants to be free."
"If I buy a CD, I can do what I like with what’s on it – including trade its music."
"If I don’t make any money from my file sharing, it’s not illegal."
"The recording industry won’t sell all its songs online, so I’m entitled to my unauthorized downloads."
"Well, I wouldn’t pay for the music, anyway."
"Maybe, but I wouldn’t pay what the record companies charge."
"Well, then, downloading songs is ‘fair use.’ "

He concludes: "All these delusions are most troubling in that even as you voice them, you know, deep down, that you don’t believe them. They smack of post-hoc rationalizations for self-serving conduct.  We’re all taught not to take something that belongs to someone else. Downloading music that you would otherwise have to pay for is wrong, and everyone knows it. Including you."

TLA’s comment about the illegality not being in doubt is "Isn’t it? I thought it was the uploaders they were going after? Is it just semantics?"

First of all, it seems to me that the distinction between downloading and uploading is semantic.  People don’t upload into outer space – they upload so that others can download.  This is like arguing that it is OK to take something that someone else has stolen but left on the ground.

But more importantly, while I generally agree with Gibson, I think he is largely missing the point, or perhaps pretending to, in order to distract the substantive discussion.  The issue here is that the media companies have not adapted.  They don’t want to adapt.  They will fight like cornered manic weasels to avoid adapting.  All because of one unavoidable truth about the internet and what it will do to the distribution of music (alluded to here): the internet is the most efficient means we have yet invented to squeeze margins until they shriek with pain, and the industry has no interest in being a slave to the medium.  Which is too bad, because it has no choice.  Resistance, as they say, is futile.  Which means that until music is efficiently delivered via the ‘net, it will leak out through it – via all manner of young toughs, rapscallions, hoodlums and general ne’er-do-wells.

What does this have to do with Gibson’s point of view?  Well, users of music have good reason to be frustrated with the available means of getting music.  And that frustration finds voice in all kinds of justifications.  So, for example, downloaders think:

– if not free, music should be much, much cheaper
– if not fully tradeable, music ought to be distributable within some bounded group – family?  friends?  Music club?  For a week?  For a day?
– I don’t know whether I want to keep this – I shouldn’t have to pay full price if I’m going to toss it in a week, or rip it but only listen to it twice more before I die.  Give me a model that ties pricing to intensity of usage.  On the plus side, given the popularity of artists like Britney Spears and her ilk, imagine what this model would do to their commercial viability :)

and so on.

All of this, of course, is happening because the technology has pushed well beyond our ability to adapt business models.  The difficulty for the media business is that lots of people will not wait for it to catch up.

P.S.  And one last thing.  Isn’t it a little, well, rich, for a law professor to accuse someone of making an argument in which they do not personally believe, simply to advance their cause?  Isn’t that what they teach students to do?  (Isn’t that, um, for example, a major foundation of criminal defence arguments based on the constitution?)

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