ushdfgakjasgh's writeup directly or indirectly makes the following three points about reproducing and distributing copyrighted works free of charge:

  • There's no moral or legal question, because charging for what should be free is in itself immoral, and the laws side with the end user, not the copyright holder
  • It's inevitable, because the curve of technology has outpaced the ability of copyright holders to control the unauthorized reproduction and distribution of media
  • The free and open exchange of all media will be a good thing for everyone involved

Where to begin?

Morality and Legality

The problem with arguing the morality of anything is that morality is subjective. That's also why it's hard to codify morality. Most people believe that murder is wrong and murderers should be punished, but even something as basic as murder has all manner of caveats appended to it. There are degrees of murder, separate categories for accidental murders (i.e. manslaughter), punishments for being an accessory to murder, questions about what constitutes murder (Is abortion murder? Is euthanasia murder?), and instances in which murder is condoned (self-defense) or is in fact carried out by law (death penalty). Something that appears to be clear cut on the surface isn't so clear cut.

A similar issue arises when one tries to define theft. Many people don't consider making a copy of a CD (or DVD, or MP3) to be theft, because no one is deprived of their property. This appears to be one of the two arguments that ushdfgakjasgh makes for why it's OK to do this:

  • Nothing happens to the original during the copy
  • The owner of the original does not profit from the copy

Other common arguments include the fact that artists receive only a fraction of the money made from music sales, or that the person who ends up with the copy would never have paid money for it anyway. All of these arguments are moral justifications for reproducing and distributing copyrighted works, and any argument one way or the other about the morality of it is futile. It's much better to focus on the legality of D&R.

The writeup above would have you believe that the legal arguments against file sharing are "stretched thin", which seems to indicate that either copyright holders are suing end users frivolously, or the laws that protect copyright are being struck down. Neither of these is the case. Here are the two unarguable facts about copyright law in the United States:

  • An owner of a copyright has the exclusive right to reproduction of the material.
  • An owner of a copyright has the exclusive right to distribution of the material.

There is, of course, the principal of fair use, which is almost never successful in court, and never applies to the sort of D&R cases discussed in this write-up. The fact is, in nearly every major case involving copyright and the Internet, the copyright holders have won and won decisively, and in cases where the defendant won, copyright law was quickly changed to strengthen the rights of the copyright owner.

The first major example of this was United States v. David LaMacchia. In this case the defendant was distributing software over the Internet, but the case was dismissed because LaMacchia was not profiting from the distribution. This is one of the arguments that ushdfgakjasgh makes - that it's OK to reproduce copyrighted works if you don't profit from it. The problem is that the law disagrees, because shortly after the case was dismissed, Congress passed the No Electronic Theft Act. Distributing copies of copyrighted works is now a criminal act, regardless of whether or not you profit from it.

A&M Records v. Napster was probably the case that got the most attention, because Napster was the first P2P service to gain widespread popularity. Napster, probably foolishly, argued that downloading content was protected under fair use. Additionally, they asked the court to require copyright holders to grant a license to Napster. The court rejected both of these claims, and Napster was effectively shut down.

Not long after, MGM v. Grokster was decided in favor of MGM. Since Napster was taken to task for having the technology and wherewithal to prevent copyright infringement but refusing to do so, Grokster's argument was that as a decentralized P2P service, they had no control over what was shared on their network. The Supreme Court acknowledged this fact, but still ruled in favor of MGM, stating that because the Grokster business model involved actively promoting copyright infringement, the company could be held liable for the same.

These are just major cases. In countless other smaller and less-publicized cases, copyright holders have continued to pile up victory after victory over people who have "innocently downloaded even a single .... song." I am not saying this is a good thing. I'm not saying that this is right. I'm just pointing out the facts of the law. The facts of the law are this:

If you download copyrighted media without the authorization of the copyright holder, you are in violation of federal law. Not only are you in violation of federal law, but if you go to the EFF and ask them to take your case, they will politely sit down with you and explain to you why you are in the wrong. And if you go to the ACLU and ask them to take your case they will probably laugh in your face, because the charter of the ACLU is to defend the Constitution, not fight existing copyright laws.

ushdfgakjasgh makes a comment about "'making available' arguments" and suggests that the reader look at them to see the dire legal trouble that copyright holders are in. Presumably he's referring to Elektra v. Barker and others, in which the plaintiffs have argued that those who simply make files available for distribution are violating copyright, whether or not they know they're doing so, or whether or not those files are copied by others. The "making available" argument has been rejected by the courts, giving a brief rest to plaintiffs in file sharing suits, but this is mostly because existing copyright law does not adequately define what distribution is and isn't in the wake of technological advances. Put another way, it's semantics.

That's really all anyone can fight over at this point - definitions of reproduction and distribution as it pertains to a new all-digital, non-tangible model. In all likelihood, the definitions will be restated and redefined and reshaped by continued litigation and jurisprudence. Rest assured that the laws that govern this aren't being written by aging politicians who "sent 'Internets' to their staff" or senators who liken the Internet to a series of tubes. They're written by people who know exactly what they're doing.

The Curve Of Technology

It's fair to assume that the curve of technology will eventually allow an end user to download a full-length high-definition film in just a few seconds. It's not really a question of if this will happen, but when. It's also quite likely that tangible media will become less and less common. Naturally this means that distribution costs will dwindle, as the price for pressing a compact disc and printing artwork and delivering it onto a truck and paying employees to sweep storefronts and print receipts and find things for you in the back will diminish.

The problem with the download-and-distribute model, from the point of view of record companies, is that they have no control over secondary D&R. This has been true for a long time, as ushdfgakjasgh notes with regard to video tapes, but it has been a gradual degradation of control. In the case of cassette tapes, fidelity was lost with subsequent copies, so copies had to be made from the original. This required time, effort, and money. You had to find somebody who had the original. Then you had to arrange for them to make a copy of that blank tape, which, if you were lucky, they could do at 2x or 3x if they had high-speed dubbing. Was it a major pain in the ass? No. But when Joe Nobody bought Van Halen's 1984, he wasn't going to make more than two or three copies of it, unless he was in desperate need of friends. Time, effort, and money - three inhibiting factors.

The advent of the Internet, and specifically, audio compression technology (e.g. MP3) took away all three inhibiting factors. When Joe Nobody buys a copy of the latest Coldplay album, he doesn't have to spend a half hour making a single copy for a friend. He can spend five minutes encoding it and then share it on the Internet where over a billion people have access to it. The recording industry has always known that it's impossible to completely eradicate piracy. The best they can hope for is to make it difficult for the average person. Small-scale piracy was largely ignored, large scale piracy required a significant monetary investment and willful intent. Now the industry is dealing with people who share music like they share Skittles, people who in many cases don't know what they're doing is illegal, and in other cases don't care. One schmuck in Battle Creek, Michigan can be responsible for 10,000 downloads and be barely aware of it.

The frequency with which something takes place is typically proportional to how easy it is to accomplish, and the frequency with which laws are broken is typically proportional to how easy it is to avoid prosecution. It's easy to download copyrighted material from the Internet, and the chances of being prosecuted for it are particularly low. Add those two factors together, and you have the two main reasons why people do it. That doesn't mean it's legal.

Free Media For All = The Communization Of Media

One should be very wary of a world where no one can charge any money for media. On the surface it sounds really cool. "I can watch Deadwood and The Wire and Buffy and the new Batman movie and listen to Pink Floyd and Radiohead and then read the latest Neal Stephenson novel... all free of charge." There's a serious flaw in that argument, and it's one that will be addressed, but first I want to visit a point made by ushdfgakjasgh, and that is what he calls "the democratization of music", which will occur when the industry loses its stranglehold on D&R, and the rise of D.I.Y. musicians allows everyone an equal chance at success.

The democratization of music has already happened, and it happened because of the existing D&R system. Every person who purchases an album votes democratically with his wallet, and every person who chooses not to purchase an album does the same. Britney Spears is mentioned, primarily because it's 2009 and she's a convenient target (in 1993 the target no doubt would have been Vanilla Ice or Milli Vanilli). Since a select group of people control distribution, the argument above reads, they have a "collective ability to decide what music is popular, what music is under demand, and what music is sold." This is just plain wrong.

Here's a painful truth about Britney Spears. Jive Records didn't make Britney Spears popular. Jive Records pushed her - they made a nice music video and peddled her everywhere they could, but it was consumers who decided her music was good enough to make ...Baby One More Time a number one album in twenty eight different countries. There's a saying that 50,000,000 Elvis fans can't be wrong, and the same is true with 14,000,000 Britney Spears fans. You can like or not like ...Baby One More Time, but you can't argue that it's crap. It's slickly produced, well-engineered, and catchy as fuck. It was one of the best pop music albums of 1999. People typically like pop music... that's why it's called popular music. People liked Britney Spears. People made Britney Spears popular. Music is subjective.

One can argue that even in musical democracy, none of the candidates are worth a vote. There's certainly some guy playing guitar in a bar in Alaska who is phenomenal. There's a rapper in Port-Au-Prince with a flow that would put Public Enemy to shame. There's a troupe of drummers in Kyrgyzstan that have more rhythm than you can fathom. And all of these artists are going to be bypassed by the industry as it exists, because the industry can't find and promote everyone who deserves it. It's the same reason why there's a construction worker in Duluth who would make an excellent President. But it's not for lack of trying. And record companies don't decide what music is popular. Believe it, if the music industry could get 14,000,000 people to buy a Modest Mouse album, they would. It's all the same to them. As long as they get paid.

One can lament the popularity of Britney Spears or whichever other artist they don't particularly like. But the reason why there is such a rich and varied musical landscape to choose from is simple: people can make money from it.

As mentioned above, the Internet has given people unprecedented access to information, from sites about music theory to Craiglist's posts from a girl in Cranston who is trying to get rid of her guitar. It's probably easier than ever to get started with music. The guy who drives to Cranston and gets the free guitar and reads a little bit about music theory and finds a clip on YouTube about how to play chords is off to a good start. But success is not about will. If people could succeed on sheer force of will, the people you see on American Idol who can't carry a tune would eventually be superstars. The fact is that in addition to will, you must have some degree of talent, and you must invest a significant amount of time to ensure success. The third option is impossible without compensation.

As two separate examples, let's take the television series "Firefly" and the novel "The Shining" by Stephen King. Firefly, commercially, was a failure. Blame whoever you want for this (most people choose to blame Fox), but the network wasn't making money with the show, so they pulled the plug on it. The show has gained a cult following in subsequent years, sold quite a few DVD box sets, and that allowed Joss Whedon to film "Serenity". Still, the distributor, FOX, didn't make money from it. But they thought they would. In a world where all media is free, "Firefly" would not exist, nor would any show you have ever seen on television, unless it had been funded by the Corporation for Public Broadcasting, which itself wouldn't have existed unless enterprising individuals had seen the profit potential in a broadcast medium known as television. It costs money to make a show like "Firefly", because it requires the time of a good number of people, and people like to be compensated for their time. This is a very simple equation.

"The Shining", unlike "Firefly", was the work of a single individual, Stephen King. In writing it, King moved his entire family to Colorado and lived off the money from previous books while writing the novel. Had King received no money for his previous works, he could not have written "The Shining", and in all likelihood, never would have started writing "The Shining" if there was no money to be made from it.

Let's return to music for a moment, because there's a perception that music is an easier medium to succeed in because it doesn't require the investment that film does, nor the time that literature does. It's also the medium that's currently undergoing the most radical shift in distribution. Radiohead released their seventh studio album, In Rainbows, as a free download on the Internet. Fans were encouraged to pay whatever they felt was an appropriate price for the download, and presumably, many people paid nothing. On the surface, this looks like a bold challenge to the current D&R model. Frontman Thom Yorke himself was quoted as saying, "I like the people at our record company, but the time is at hand when you have to ask why anyone needs one."

Paradigm shift? Hardly.

In an attempt to sound witty and progressive, Yorke ignored a few important details about their bold foray into distribution. First, Radiohead did enough research to determine that people would still buy physical CDs of the release once they were made available. This not only indicates that the desire for tangible product still exists, but since Radiohead's method of distributing CDs was to license the album to record companies, it proved that Radiohead still needed the recording industry for something. Second, Radiohead spent a considerable amount of time and money recording the album, time and money they would not have had if not for the six previous albums that EMI helped them make millions from. Third, while it seems like self-distribution is a great model for bands moving forward, there are only a handful of artists who can accomplish this, and all of them are artists who are in that position because of the existing structure of the industry.

The argument that music theory, home recording equipment, and Internet distribution outlets are readily available invalidates the argument that music should be bought and sold is a fallacy. "It is simply ridiculous to think that you can capture a sound from the air and charge for it." People paying for a song aren't paying for a sound captured from the air, any more than people paying for art are paying for colors strewn on a canvas, or people paying for basketball tickets are playing to watch some people run around and jump for an arbitrary period of time. People are paying for the quality of the song they're buying, the quality of the art, the skill of the basketball player.

What is "simply ridiculous" is the belief that the free dissemination of media will lead to anything but the complete collapse of not only the "media conglomerates", but quality media in general. Without the incentive of a financial reward, the only people who make music and write fiction and film movies will be those who do it solely because they enjoy it, and without the financial backing of a specialized entity, the quality of the material produced by those who do it solely because they love it will suffer. This is true of any venture, not just music. Businesses exist, grow, and thrive because they receive financial backing from investors and because the people who work for those businesses put in hard work with the hope of a substantial financial reward. Maybe someday in the future when capitalism is no longer the dominant economic system on the planet, this will change, but capitalism isn't going anywhere anytime soon.

"Artists who have relied on patronage in any of its forms for a career, regardless of how they may feel about the price charged for their music, will simply have little option but to give it away for free."

Wrong. They have another option. And that's to not make music to begin with.

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