MOTION #73: THIS HOUSE BELIEVES THAT DOWNLOADING MUSIC WITHOUT
PERMISSION IS MORALLY EQUIVALENT TO THEFT
Until the 1990s,
copying music was a tedious task: you needed to go out and buy an album. If you
wanted to copy it, you needed to buy a cassette and then play the entire album
while the cassette was recording it. Two developments changed this: one was the
invention of easily copyable audio-file formats, most notably MP3. This allowed
music-lovers to copy a song with the click of a mouse-button. The second was
the spread of the internet, and with it special software which consumers could
use to share files, like peer-to-peer-software (p2p, torrents) and
Usenet-groups (with the NZB-filesharing method). Now, everyone could both copy
and distribute music very easily.
It is important to
understand the difference between “distributing” music and “copying” music.
Distributing means making the music available for other people, either for
profit or not. This is in any case illegal, because even if you buy a copy of a
song legally, you never have permission to pass the song on to other people. In
the context of peer-to-peer software, uploading is the same as distributing.
Copying means making a
copy of a song or album for your own use. Before the MP3-format and the
internet, making a copy was a little bit of a grey area. You were allowed to
make a copy for private and personal use, but legally speaking only under the
following three conditions (this is called the Berne three-step test, after the
Berne Convention which laid it down). Copying is only allowed in “certain
special cases”.
Copying should not mean that the artist who produced the music cannot
exploit their work normally. copying should not hurt the lawful interests of
the rights holder (this is often seen as meaning that the private copy
exception is only allowed when there is also a way of charging for the private
copies being made, so that the artist gets some payment). Before the internet
other forms of copying were considered illegal, but probably you would never
become involved with any other forms of copying, unless you actually became a
professional (criminal!) music pirate with a factory in your backyard, copying
and cranking out music CDs for your own profit. But, as noted above, the
internet changed all that by making it easy for anyone to copy and distribute
music files. Today uploading music without permission is globally considered
illegal. Downloading without permission is considered illegal in most but not
all countries (i.e. in the Netherlands until 2009, it was legal to download
under the private copy exception. Just recently, the Dutch government announced
they would make downloading without permission illegal there too). This
casefile only examines the case of downloading, not uploading.
Pros
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Cons
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Theft is an assumption of property rights. Theft is taking something from someone who is the
rightful owner without their permission. It doesn’t matter if the rightful
owner keeps an original version or not. If you are downloading music from an
unofficial source, you are stealing it: you can start listening to that song,
without the permission of the original owner. The only way you can get the
right to listen to that song is via a legal transaction from which the rights
owner can make a profit
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Theft always
involves a thief taking something away for themselves with the result that
the original owner can’t use it anymore. For example, if I steal your bike,
you can’t use it anymore. And this is exactly why theft is wrong: you had
something which you wanted to use, and now you can’t anymore, simply because
I took it.
That’s why downloading music is not theft because it is
a form of copying. You download a copy from an original, but the first owner
still has the original on his or her computer, and can still enjoy it. In
more complicated terms: music files are “non-rival” goods, meaning that my
use of the good does not diminish your future use of it.
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A legal transaction is the only way to achieve free
exchange of value. Because the artist
made the music, it is their property, in this case “intellectual property”.
Property means that the owner/artist has the right to ask something from you
in exchange for you gaining access to the music. This may be money. It may
also be the requirement that you clearly recognize the artist’s moral right
to always be mentioned as the creator of that music. This is called the “free
exchange of value”, and this is the most fundamental relationship in our free
market economy.
Whatever the artist chooses as payment through a legal
transaction, it is his/her basic right to ask this of you. The only way to
make sure that he/she can actually exercise that right is by making sure you
only take music from the artist through a legal transaction, i.e. with their
permission. Only then can we be sure that the desired free exchange of value
has taken place
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Realistically speaking, music is not even property -
for property to really be property, it needs to be tangible (something
physical you can touch). If it is tangible, it is easier to keep you from
using it, whereas when it is intangible, I can’t. What if you hear a song on
the radio which stays in your head all day long because you liked it so much?
In economic terms, we call such a good “non-excludable”.
Private property is both a rival good (see above), and
excludable. The above shows that music is neither, even though we happen to
call it “intellectual property”. That means that music can’t be private
property, and copying it can’t really be theft in any normal sense of the
word (see above). In addition, the moral right of the artist to be known as
the author of a piece of music is also not broken by downloading. People
usually sort the music on mp3-players by musician’s name, which means that
we’re always recognizing that a certain artist made a certain song.
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Musicians have to eat. Apart from the moral reason, there is also a simple societal reason why
it is wrong to download music without permission. The reason is that
musicians have to eat, too. Suppose you are an up-and-coming young musician
thinking about what to do with your future. You can either become a full time
musician or take up a job. If you become a fulltime musician, you’ll be doing
what you love. But at the same time, everyone will be downloading all your
music for free, simply because they can. This means that music won’t be a
good, stable source of income for you, and this means you’d rather take up a
job. Since you’re not working on your music every day, your talent will be
underdeveloped, and the little pieces of music you do write, for example in
the weekend, are not as good as they could have been. So, downloading music
without permission will lead to fewer good musicians. That’s not only bad for
the musicians, but also for us: we’ll have less good music to listen to.
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It’s true that musicians have to eat, too, but it’s not
true that downloading cuts their income. Most of the money spent on music
goes to record companies, not to artists, from each retail CD sold the artist
only gets between 3 and 10%. Those record companies have been keeping
musicians on a leash for decades, paying them less than they could. They paid
them enough to make sure they would remain fulltime musicians, but not so
much that they didn’t bother to create new albums. So if downloading music
files means record companies miss out on some income, we shouldn’t feel bad
about it.
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Downloading does not fall under the so-called “private
copy exception”. The private copy exception only covered those rare cases
when you took the effort to make a copy from a lawful source (perhaps putting
a song you owned on CD on to a cassette so you could listen to it in your
car). With the internet, the situation changed hugely. Firstly, copying
became a lot easier. Secondly, the home copy-exception applies to when you
borrow an album from a friend - someone you know. Online, you’re downloading
from anyone, anywhere who happens to have the song you want. Thirdly, when
you start downloading using peer-to-peer software, you will usually also
start uploading at the same time. It’s the nature of p2p-technology that you
both distribute and consume. So, you’re not just making a copy for yourself,
you will also be distributing the same song, and that distribution is in any
case wrong. These changes together mean that the three step-test is not met,
so downloading does not fall under the private copy exception and is
therefore illegal.
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There is a private copy exception. Downloading music without permission is allowed under
the “private copy exception”. Practically, the exception meant that you were
allowed to copy, but not distribute any music. Downloading music from a
torrentsite or newsgroup is essentially the same. People who download music
do it purely for their own enjoyment and use. They have no intention to
resell the songs and make a profit from it. So, if it was legal to make a
copy for personal use before the internet was invented, why then should it
suddenly be different afterwards? Indeed while the private copy exception is
not universal it is allowed under the Information Society Directive within
the EU. And when it comes to peer-to-peer software, you can turn off the
option to upload automatically. This allows you to only download, but at a
slower speed.
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Record companies have been blamed for unfair practices,
like DRM, “milking” artists (see opposition argument 3), or suing individual
downloaders for unfair damages. But record companies also have a very
positive role to play: they scout every day for new talent, and offer
training and production studios for up-and-coming musicians. Moreover, they
provide valuable marketing services, making sure that new artists get heard
instead of drowning in the vast sea of information that is the internet.
Consider this, how do you even know which song to download? A large part of
that is because record companies get the music out there, on to radio
stations, all over MySpace, on MTV, so that you get to hear it for the first
time. Those are things a musician is not trained to do and very often does
not want to do, which is why it is good to have record companies.
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Downloading is morally right. Even when downloading is illegal, it still is right
from a moral viewpoint. The reason is that by downloading, you’re not hurting
the artists, but the record companies. And these record companies have
engaged in unfair practices towards consumers for decades. They asked €20
euros for a CD, when a blank CD only costs about 5 cents. They still engage
in unfair practices, for example via DRM. DRM stands for Digital Rights
Management, and it means that companies limit how and when you can listen to
a song. For example, you can buy a song and listen to it on your MP-3 player,
but if you want to play it on your laptop, you have to buy the same song
again. Moreover, record companies have sued individual consumers for huge
fines for downloading just a few songs. Most recently one ordinary woman was
fined $1.92 million dollars, which just doesn’t add up to the “damage” these
individuals are supposed to have done. That’s unfair, and because it’s
unfair, we are justified in download without permission.
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It is a mistake to think that when you’re downloading,
there isn’t someone else making a huge profit. Torrent sites and other
“pirate” sites gain huge amounts of income from the advertisements on their
site. This means that they profit from material which is not theirs. Why
should they profit from material they have gotten unfairly and without
permission?
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Downloaders spend
more on music. Downloading songs
could mean more income for musicians. Concerts (plus merchandise like
T-shirts) are becoming a bigger source of income. But suppose a new musician
comes to town. How am I supposed to know if I want to go to their concert if
I don’t know their music? Previously, I wouldn’t have gone since I didn’t
want to spend money on first buying their album and then buying the ticket.
Now, I can quickly check out their music by downloading some songs to see if
I like it, and then go to their concert. I save money on the albums, and will
go more to concerts. Indeed a study by Demos has shown that people who
illegally download music spend £30 more on music per year than those who do
not.
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