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In a recent seminar for a parents' group on Internet Safety, I talked about a parent's responsibility to teach good online citizenship in addition to e-street smarts. Afterwards, a conferee wrote to ask "Is it wrong to download MP3 files off the net?" Here's a personal answer.

Copyright, Piracy and Personal Ethics

By Jack Powers
Published: February 27, 2003

How to deal with copyrights and digital content is an increasingly important question, one that everyone has to answer for themselves. Here's how I see it.

1. FAIR USE

Copying is not illegal. Magazines, for example, are protected by copyright. Photocopying a magazine article to give to a friend or a student has long been accepted as "fair use," personal, educational, non-commercial. Printing a million copies of the same article -- whether you charge for it or just give it away because it has your company's picture is in it -- is obviously wrong and violates the author's and publisher's copyrights. Very understandable.

Posting a music file on Kazaa for your friends to download seems to be a similar "fair use." An invisible line gets crossed, though, when 30,000 of your "friends" download the file. Then, it is argued by the music industry, you're stealing copies that would otherwise have been purchased from the record company.

If you never buy a CD again and get all of your music free online, then I think that's stealing and that's wrong. Studies show, however, that most MP3 users buy more CDs than non-downloaders -- maybe because they hear bands and genres they never would have heard otherwise, or because they chat about it more, or because they're kids and are more into music in general.

There's a good  discussion of fair use at DigitalConsumer.org.

2. FREE LISTENING IS NOT STEALING

There are many ways that we get to listen to music that we don't pay for. Record companies move mountains to get songs played on the radio, for free. They hand out CD singles and tapes at promotional events, for free. They license tunes to movies and commercials so that we hear them all the time, for free.

It seems to me that downloading a song you've never heard from an artist you don't know is a great use of the Internet and something that is a positive good for artists who want to find an audience. Internet music has breathed new life into genres and singers that the music industry considers "unprofitable."

Amazon.com runs a huge free music section.


3. LABELS VS ARTISTS

It's unfortunate that this discussion about copyright takes place on the battleground of music. In popular culture, everybody hates record companies. Everybody knows they are greedy and rapacious suits who exploit young talent, live fast, loose and high, finagle the books when it comes time to pay, discard venerable pros past their prime and employ armies of lawyers to treat their suppliers and their customers like criminals. Moreover, the Recording Industry Association of America representing the major labels has not been reasonable, truthful or very smart in their response to online music developments.

No reasonable person begrudges artists the payment for their music. But it's record companies -- from the labels to the production houses to the distributors and retailers -- that get the bulk of today's $20 CD price tag. In the idealized Internet environment, an artist records a song onto his PC and sends it directly to his audience online, getting paid directly -- far less that the label's $20 suggested retail price but far more than he'd get otherwise. "Cut out the middleman and everybody's happy" is the idea.

But the middlemen have roles to play, many good, some bad. They find and develop new talent; they produce very high fidelity recordings with strong production values; they segment the marketplace into popular easy-to-buy genres; they promote and advertise and publicize; they sometimes support work that may not find its audience quickly, and sometimes they don't; they police the use of their copyrights, often for generations.

Just because the record companies have acted abominably doesn't mean it's OK to steal from them.

4. PERPETUAL COPYRIGHT

The purpose of copyright law is to provide a limited monopoly on a creative work so that the artist can benefit and has an incentive to produce more. Unlike physical property -- a house, a diamond ring, a car -- a work of intellectual property can not be tied up forever. Ideas ultimately belong to society at large; they build on existing culture and form the foundation for new ideas and new creative work.

Originally, U.S. law protected copyright for 14 years plus an optional 14 years. But giant media concerns have lobbied Congress repeatedly over the years to eventually get to the current term, the life-of-the-author-plus-70 years, or 95 years for a company-owned copyright. That means that a tune written today by a 33 year old rock star who dies at 60 in the year 2030 will be locked up until 2100, the turn of the 22nd Century! (It used to be life-plus-50 years, but a recent hard-fought Supreme Court ruling upheld the 1998 "Sonny Bono Act" that retroactively made it a 70 year term.)

This is clearly very bad for an idea society that builds on its intellectual property to create new forms. It's mainly for the benefit of the suits and lawyers who run media firms, not the creators of the original works. (The extension of copyright law seems to coincide with the rights to Disney's original Mickey Mouse; just when the Mouse is about to enter the public domain, Congress is lobbied hard to extend protection.)

5. ROBOT COPYRIGHT POLICE

Before the digital age, copyright was something too difficult and too expensive to violate easily for fair or unfair use. Taping an album or duping a VHS videocassette produces notoriously poor copies. Photocopying a 500 page book just doesn't seem worth it.  But with computers and digital media, copying is easy and almost free. PCs treat every file as an easily duplicated set of ones and zeroes. Tivo digital Personal Video Recorders and the new DVD player/recorders let consumers copy perfect programs off the digital cable or satellite feeds. Scanners and photocopiers are more automated than ever.

Media companies are reacting to the ease of digital copying by inventing new technologies and new laws that will technologically kill "fair use" copying. Digital Rights Management (DRM) techniques try to lock users out of the media they buy. DVDs sold in Asia, for example, won't play on recorders in Europe where DVD prices are higher. CDs that play on portable Walkmans won't run in a car player or PC. Software won't run until it "dials home" over the Internet to get a digital OK from the factory. TV shows have a secret signal that disables a video recorder so the show can't be taped. Digital "watermarks" are secretly embedded into images, movies and songs so that the police can track which stolen record came from which purchaser. There are dozens of DRM programs on or close to market.

Worse, media firms have lobbied to get laws that make it illegal for consumers to break these copy protection schemes or for someone to even talk about how they might be broken. The Digital Millennium Copyright Act (DMCA) has been used to stifle research, kill new products and stop consumers from copying their own disks. The idea now is that you don't buy a CD or DVD, you buy restricted rights to listen to the CD or watch a DVD under a specific set of conditions. The disk contains code that makes it impossible for your to get around the restrictions, and it's illegal for you even to try. Our tradition of fair use is being threatened by these technologies and these laws.

There's even a more draconian law being proposed by Congressman Howard Berman that would make it legal for media companies to break into your computer, look at your files, jam your Internet connection and put phony songs on your disk.

Technology that polices the way individuals use the products they own is very wrong.

6. RESPECT FOR THE LAW

It's not just music, of course. Photos, poems, movies, formulas, programs -- all are being locked up for longer terms and in more technologically restricted ways, generally in the hands of companies that had nothing to do with their creation.

Bad feeling about the corrupt copyright regime further moves people to violate copyright law in the easy online world. Our Information Age society depends on the free and open exchange of ideas and information. In this environment, kids -- especially their anti-establishment phase -- can come to believe that stealing is OK.

7. WHAT I DO

But stealing is not OK. Sharing is good, but giving away somebody else's work is wrong. From my earliest work with computers, I try to balance the stuff I get for free and the stuff I buy based on the benefit I get from it.

For example, I'll download a piece of demo software to try it on for size. If I like the program and use it, I make sure to pay for it.  In my job, I get a lot of free demo software, but I pay for the programs that I write about and especially for the ones that I use day-to-day. "Shareware" is the name for this honor system way of buying programs, and it seems to work quite well for a lot of products.

Similarly, I'll download a new song or sample a new artist online, and if I like the work I'll buy it either over the web or in a store. I also rip a lot of music from the CDs I own, keeping only the good songs and rearranging the order the way I like. And I'll download music off the Net if I can't get it any other place. There are lots of studio sessions, concert tapes, alternative versions and just plain obscure music that I enjoy exploring. For these, I couldn't pay for it if I wanted, but I'm more inclined to buy an artists' next production if I liked the work that I found online.

I discuss this all with my 15 year old daughter who hasn't seemed to have slackened off buying CDs although she's downloaded quite a few songs. Music is extremely important to anybody under 25, and I'm very pleased by the way she explores and studies what she can get online. Like a lot of new technology toys, though, downloading frenzy seems to fade fairly quickly once the basic library is complete.

As somebody who's career is based on developing and selling intellectual property -- books, articles, seminars, videos -- I have two somewhat conflicting inclinations. One the one hand, I want to get money from everybody who benefits from my work, on the other hand I want to get my work out to everybody. The Internet seems to me to be a great way to do both.\\

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