Copyright, Copywrong And Copyleft Part 1 – Is Filesharing Stealing?

There’s been a lot of debate recently about the morality, ethics and legality of filesharing – between the success of the Pirate Party in the European elections, the formation of a similar party here, the proposals to cut off internet access for ‘offenders’ and the comments made by that towering intellect Lily Allen.

As someone who makes music myself (MP3s of which can be purchased here (along with CDs by my friend and collaborator Blake Jones) for a very low price, or you can listen on Spotify here), and would very much like to get some money from doing it some day, I obviously have very strong opinions about this. But before I get to what I think we should *do*, I’ll just use a few anecdotes (anecdotal data – the best kind!)

In 1999, I was a student. I read in Mojo magazine about the Nuggets box set, which sounded like just my sort of thing. However, it cost sixty quid, which to a student is a lot of money. I couldn’t justify spending that on a box set of CDs without having heard any of the songs. However, my then-flatmate had this thing called Napster on his computer, so I downloaded a few songs from it – Psychotic Reaction by The Count Five, I Had Too Much To Dream Last Night by The Electric Prunes, and a few others. As a result of this I bought the box set, because I loved those tracks. As a result of *that* I bought albums by The Knickerbockers, Sagittarius, Love, The Thirteenth Floor Elevators and many more, as well as the Nuggets 2 box set and various other albums branded ‘Nuggets’, ‘Pebbles’ or ‘Ripples’. As a result of *those* I also bought albums by Curt Boettcher, Sandy Salisbury, The Millennium, Gary Usher, Roky Erickson & The Aliens and more than I care to think.

I also went to see both Love and The Electric Prunes live. As a result of the Love gig I bought albums by the backing band Baby Lemonade, and I also became a fan of the support act, Stew, which led to me buying albums by Stew, The Negro Problem, The Passing Strange Original Broadway Cast, Candypants, Carolyn Edwards, Kristian Hoffman and The Stool Pigeons, as well as spending several hundred quid commissioning Stew to write and record a customised song for my wedding (a really fantastically good song, incidentally – I doubt he’ll ever do that again now he’s a Tony award-winning Broadway composer whose musical has just been released as a Spike Lee film, but if he does it’s more than worth the money).

At a very conservative estimate, me downloading that handful of songs ten years ago has led to me spending at the very least a couple of thousand pounds on obscure music – and most of that spent during times when I was a student, unemployed, or on minimum wage (which I was until about a year ago).

In 2002 I bought Neil Gaiman’s book Adventures In The Dream Trade, a collection of miscellany which included forewords for a lot of comic collections. I had been a comic fan in my teens, but had more or less dropped the hobby, but thought ‘some of these sound good’, so I downloaded a few random issues of Cerebus, Brat Pack and Astro City from Soulseek. I now have two bookcases groaning under the weight of trade paperbacks (one has literally broken under the strain this week), a few longboxes full of individual issues (I would have more but I regularly clear out less-good comics and give them to my niece), and spend about fifteen quid a week on comics – because of that handful of downloads.

Around the same time I remembered how much I’d liked Doctor Who as a kid – I’d been a HUGE fan while the show was on, and for a couple of years afterwards, but living in a small town and being very young had no access to fandom so once the local newsagent stopped stocking DWM, I’d dropped away. But I thought “I wonder if it was as good as I remember? I’ll download one of the ones Douglas Adams did – that should be good”. I now have fifty-nine stories on DVD alone (depending on how you count the Lost In Time and Trial Of A Timelord sets), along with books (both novels and reference books), audio dramas (spent twenty quid on those *yesterday alone*), toys (a little mini K9 my wife bought me), posters and the occasional conference visit. (I have many of the rest of the stories as downloads, incidentally, but will be buying the DVDs in due course). I definitely spend several hundred quid a year on Doctor Who, largely as a result of that single download.

So when I read all these ‘home taping is killing music’ type articles, I just find it ludicrous. When I have downloaded stuff via filesharing programs (as opposed to legal downloads via emusic) in the past, it has been literally impossible for it to have been taking any revenue from the artists who worked on it, because every single penny of disposable income I have had – and to be honest quite a lot of money that should have been spent on things like clothing, rent and utility bills – has gone directly to those very same artists. Short of getting another job, or robbing a bank, there is no way I could have given any more money to those people – and most of them would have not got a penny without my initial exposure via filesharing.

So I hope that disposes of the ‘filesharing is stealing!!!!’ part of the argument against filesharing. Sharing is, in and of itself, about as far from stealing as one can get – sharing information, especially, is in my view a wholly good thing, because nobody has been deprived, and someone has gained.

However, there are other arguments that are tied up in the filesharing issue, and the issue of copyright in a digital age, and I would like to deal with them in separate posts, simply because this one is already far longer than I planned on it being. Those other posts, which I’ll do over the next few days, will deal with the issues of ‘moral rights’, of compensation of artists, of new artists gaining recognition, and what I hope will be the solutions to this.

There are some huge problems with the current models for artistic compensation and copyright, and these are particularly hitting people like me, who are capable of making (I believe) very good recorded music but who are not able to perform live for whatever reason. I hope to point out some ways that these problems can be overcome in the next few essays (next part probably on Tuesday).

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22 Responses to Copyright, Copywrong And Copyleft Part 1 – Is Filesharing Stealing?

  1. LemmusLemmus says:

    One could trade anecdotes and theoretical arguments about how artists are hurt by or benefit from their stuff being available for free all day. Revolutionary idea: Let the artists decide whether they want to give their work away or not.

    • “Let the artists decide whether they want to give their work away or not.”

      Which depends on freeing artists from the control of record companies and publishers, but Andrew is probably going to get onto that before long.

      • LemmusLemmus says:

        You’re making it sound like slavery. To the extent that artists are under the control of record companies, that’s because of their own choices.

    • pillock says:

      That is TOTALLY a false choice. There are lots of ways for artists to get paid — lots of ways they do get paid! — that don’t require music fans to pay at the pump. Artists aren’t harmed by having very popular promotional channels available to them — I would go so far as to say they are never harmed by this — but if there’s potential revenue walking out the door too, I for one prefer not to have to choose between just, oh well, letting it go and shutting down the damn PR channel. That’s not a proposal, that’s an ultimatum.

      And I thought we were dispensing with the filesharing=stealing thing, for Christ’s sake.

      I beg your pardon, but it does make me hot under the collar.

      • pillock says:

        And the other important point here: it isn’t that artists need to decide whether or not to give their work away, it’s that the work is out there being copied already, all over the place, and that’s not gonna stop. The question is, what to do with this fact? The record companies are dealing with it by trying to get litigious on the one hand, and by trying to make people think they’re taking food out of the mouths of artists on the other. And artists themselves are coming up with all different approaches to it, some get mad and some get happy…some fall in with the anti-piracy line and some reject it. But that’s all that’s happening, here, it’s not like anyone’s ever gonna go “all rights reversed” on a song they wrote — why would they? And yet they also need the work to get out there, too, because if nobody’s listening then nobody’s buying, and getting people to listen enough to you that you can make a living at being heard can be a tough nut to crack. So it’s a big middle ground, and not actually all that much need to get super-decisional about anything in it, as far as I can see…I’m just not crazy about people getting their asses sued off in some kind of record-company death-spasm that I believe is totally unnecessary and wasteful, and stupid. All the effort put out there to make this a moral question, well here’s what I think is the only moral answer: that I would never sue that lady in the States for 1.2 million over the twenty-four songs she had on her hard drive or whatever it was, Jesus Christ, her life is ruined now…I’ll find some other kind of work rather than get attached to that sort of business, thank you very much…

      • pillock says:

        Sorry, like I said: hot under the collar…

        • LemmusLemmus says:

          I never said there’s only one way for artists to get paid. Incidentally, I also think artists should have the right to decide whether or not their concerts are free, for example.

          What to do with the fact that people are breaking laws that make perfect sense? Enforce them, maybe? (I agree that the punishment in the case you cite is wildly disproportionate.)

          As for all your arguments how it’s beneficial for artists if their stuff is shared for free, I believe I already covered that.

  2. pillock says:

    I do think you get to the heart of it by opposing sharing to stealing, Andrew: I suppose the expected response from the anti-piracy crowd would be something like “well, how’d you like it if I went into your bank account and shared all your money”, but I think that’s a rhetorical response that pretty much just attacks the distinction between sharing and stealing — and that’s a bit of wet dynamite in my opinion, since sharing isn’t just a thing that’s good by virtue of not being bad, but something we assume to be good in itself. So using that opposition brings matters into focus pretty sharply, in my opinion.

    And it makes me wonder about that expression “victimless crime”…well, how about a valueless theft, instead? If to steal is to take something wrongfully, then there must be something upon which that wrongness depends…something assumed and agreed-on in the normal usage of the word. Value?

    Are there any things we possess, you got me thinking, that we don’t value?

    And then I thought eureka! Of course there is! GARBAGE. Heck, we pay people to cart it away, don’t we, it’s like the stuff’s got anti-value! And we get in squabbles with other people when they assume something we value is “garbage”, precisely because they think that gives them every right to just get rid of it.

    Which, if we truly do not value it…hey, they probably do.

    Which led me to the following thought-experiment: suppose you pay the city to come and empty whatever happens to be in your garbage can, for a dollar a week. But then suppose I get there every morning before the truck arrives, and scoop out the garbage bag and run away with it. The garbageman comes by dutifully as usual, looks in the can, sees there’s nothing there, goes on his way. You wake up late and notice only that the garbage has been disposed of.

    So, is there any theft there?

    I mean, I can think of quite a few illegal things to get up to with a bag of garbage a week, but I have a hard time seeing such a thing as theft, and I think the experiment, while probably not all that useful, does add something to this particular debate just by virtue of how insane it’s all become: that there’s a way of abstracting someone’s possessions without payment or permission that is not theft.

    In a similar vein, I was thinking about what I wanted to say to Peter David when he was complaining about people downloading his comics, which was basically “fair warning, Peter: if you don’t want me to read your comics then I won’t“. I mean, he thought it was theft: but I rather think he was more in something like the position of the garbageman. He got paid for his work. No one was stealing from him, were they?

    Okay, something got messed up in there…but it was all supposed to have to do with, you know, how fettered is one’s copyright? I was thinking that if I told you, Andrew, that you were free to borrow my car…well, someone might see you driving around in it and think you’d stolen it, but no matter how firm a grasp of the situation they believed they had, they’d still be wrong. However, if I hadn’t given you permission to take it, it would be stealing…except there’s still a way out of that for you, you could still escape public judgement, escape moral judgement, because what if I didn’t give a damn, you know?

    In real life, I think whether something is “theft” or not is a complex question: sometimes the public gets to decide, but sometimes they don’t. By which I mean, sometimes the public is permitted to act on their belief that someone has stolen something, and sometimes they don’t.

    Uh…

    Whoops! Sorry, lost the thread, there. Will be back to pick it up later, I hope…I swear it was all leading somewhere…

  3. kalyarn says:

    I feel I must chime in as the ‘bad guy’ here and say that filesharing is stealing, because at the most basic level, there is no guarentee that everyone will be like you Andrew and turn around and spend all that money on the artists you first experienced through filesharing.

    Out of ten people who share a file, let’s say four fall into your behavior, four fall into Mr. Pillock’s situation of considering the file “garbage” and would never have bought it anyway (and stop using/listening to it), and then the last two enjoy it, continue using it and continue to download the artist’s material for free without ever paying the artist any money.

    On a small scall, say of sharing a physical CD, those two people who didn’t and won’t ever pay (and will just continue to borrow your CDs to burn them) likely won’t amount to enough to harm an artist. But writ large through the ease of file sharing, doesn’t that begin to harm them?

    In response to the argument that its not the artist being harmed, but the music companies or publishers, etc, I’ll qualify my opening statement by saying that under the present system whereby most artists find commercial success, then filesharing is stealing. Though I don’t quite believe if that system was abolished and everything was handled by the artist would they necessarily be unharmed by filesharing.

    • Andrew Hickey says:

      Well, of course, that’s still not *stealing*, is it? After all, nobody has had anything taken away. In fact, by your guesstimates the artists would be far better off than they would have previously (they now have four paying customers when previously they had two). Graham Linehan, the writer, wrote recently about someone who had torrented a TV series he’d written, and shown it to his friends. When that person asked if his friends wanted to watch it with him again, they said no – they’d already bought the DVDs. As Linehan said “Let me get this straight. Before, those people were going to give me no money. Now they are going to give me some money. I like getting some money. Some money is more useful to me than no money.”

      But of course, ideally, there would be some way to compensate artists. As I said, I write and perform music myself, and while I’m glad if anyone listens to it at all, I’m even more glad if they give me some money for doing so. I’m going to talk about those in a future post. But filesharing simply is not stealing, as nobody has actually been deprived of anything…

      • kalyarn says:

        From my (really really reductive) example above, you have 6 people who enjoy the product and would pay money for it. You can say, as you do, that after filesharing, 4 people are paying money where before there was 0.

        I think the argument is what about the other 2 guys? They would pay money for the product if they couldn’t get it for free and they can only get it for free illegally – by stealing.

        So the question becomes, is the only way to engage the 4 people who do pay is to risk the losses associated with the other 2 people. I don’t the answer – it depends on how effective that ‘PR effect’ is on people and, I guess, their own morals in buying the product. Why, in the Linehan anecdote, did those guys go out and buy the DVDs when they could have just as easily watched their friend’s download again, or downloaded it themselves?

        Is that basing a business model on hoping people will ‘do the right thing’ ? Is that an acceptable risk to ask artists to take?

        • Andrew Hickey says:

          What you actually have there is six people who enjoy the product, but only four of whom *believe it worth paying for*.

          And there are many reasons why someone would buy a product they could get for free – a wish to have a physical rather than digital-only copy, a wish for extra stuff that’s not downloadable (for example they may want the DVD commentary that people usually don’t bother ripping when they share files), a wish to see the authors compensated for their work, or any number of others, including it being more convenient to buy something and know what you’re getting than downloading a possibly-corrupt file. All those reasons have certainly motivated me in the past.

          And finally, please stop using the word ‘stealing’ – in this context it is simply weasel words, and presupposing the conclusion. Without demonstrating anyone who has been deprived of property, theft has not taken place, You may well think that what has happened is morally wrong, or morally equivalent to theft, but it is not actually, as a matter of both fact and law, the same thing.

        • pillock says:

          There’s something very important to remember in this, too: the way music works already involves a whole lot of people doing “the right thing” — a whole lot of people behaving very consistently in a way that puts the lie to them simply being self-interested economic actors out to do what benefits them the most. And this is why music is art, not business: why, as I always say, only the music business is business.

          It works like this, and this is experimentally verifiable by the way: I play a gig at some local music club. There’s a cover at the door, and drinks aren’t free. I am getting paid to appear, probably getting a cut of the door, also quite likely getting some free drinks. If people liked my show, they will come up to me (while I’m getting my free drinks at the bar, perhaps!) and tell me they liked it, and offer to buy me a drink. I don’t need the drink, and I’m getting paid where they’re not, and in fact they’ve already paid — in essence they’ve already bought me a drink by paying the cover charge! But they don’t think it economically ridiculous to buy me a drink despite all this, because they’re not thinking about what’s financially best for them, they’re thinking about how much they enjoyed my show.

          And I accept the drink, not because I’m a greedy so-and-so, but because that they liked it enough to want to show this entirely supererogatory appreciation to me, makes me want to show them my supererogatory appreciation in kind. I don’t need the drink…it won’t do anything but get me drunker for the same amount of money I’m spending, which is ZERO!…but that doesn’t matter, because it isn’t about money it’s about relationships.

          And also…I don’t know why the artists should care about the two guys who are “getting away with something” in your example up above. Not being facetious, just saying: why on earth would it matter more to me if two guys who never bought before are still not buying but are listening…when four more who never bought before are buying?

          Seriously and straightforwardly, I ask you: what’s my motive to care about that?

          • pillock says:

            And not to just beat it to death, but…for me, that the artist gets paid is enormously more important than the artist not getting paid, if you see the distinction. Because whether I’m not getting paid, or not not getting paid, still either way I’m not receiving money, am I? And to me that’s where the real morality lies — I don’t care if somebody gets away with not paying, as long as “not paying” was always what they were going to do…I mean, all this concentration on putting a stop to those two downloaders at all costs, what will it accomplish, for me, for the artist, except to ensure I don’t get the money from those other four guys? Why do I have to give up my four paying customers just so those two guys who didn’t pay can still not pay, you know?

            Also, you don’t know…if one of the two has a significant other who notices them playing my songs…hey, maybe I’ll make a sale to that person, eh?

          • kalyarn says:

            I would say that your motive is getting $6 as opposed to $4, assuming that those two people would have paid for the product if they couldn’t get it for free.

            The argument you have to make is that the only way you would have ever got those 4 people to by is through offering the product for free, and weighing that against the risk of those 2 people who may have paid, never paying now.

            I guess I’m unclear on your example – by paying to get in the door, we’re already out of the realm of file sharing. I would say the analogy is that you are appearing at the gig for free and have to buy your own drinks. People come to see you and hopefully they like your work enough to come up and buy you those drinks so you don’t have to spend your own money.

            If I’m seeing at that wrong, can you tell me who in your example represents the club that is paying for the artist’s appearance?

          • pillock says:

            Whoops, sorry about that, Kalyarn: I wasn’t actually intending to make an analogy to file-sharing! I was just trying to show that people can indeed be relied on to “do the right thing” in terms of paying the artist, without coercion…by showing that they’re also quite willing to spend money on the artist when it is not even the “right thing”: when they’ve in fact already paid exactly what they were asked to pay, spent plenty of their own money as well, and for all they know aren’t even helping out that much in financial terms with their generous gesture of appreciation. So in terms of straight business-model thinking, that doesn’t make any sense, it’s incoherent behaviour: why should they want to pay, when they’ve already paid all they were asked to pay? Regardless, it happens all the time…so I don’t think it’s much of a risk musicians take, in relying on people to do the right thing, when people demonstrate a reasonably reliable tendency to do “the right thing” itself one better. Or to put it another way: around art, the descriptive power of classical economics tends to collapse, because people who enjoy art very frequently — very frequently! — will abandon the rational maximization of their own economic benefit.

            In other words, Andrew may be the type of fan everybody would like to have, but that doesn’t make his type of behaviour unusual — maybe the degree to which he chooses to support artists he likes is unusual, but plenty of people choose voluntary support by way of personal expenditure over taking whatever they can get for as little as they can get it for.

            And I think the most important thing to take away from all of that is: if we have an idea in our heads that there’s a class of music-lovers out there who will or would spend money on it, but not if they can get it without paying…well, that may not be as plausible an assumption as it seems.

            Sorry, I’m longwinded. Thank you for answering my question about your example, though! I’ll have to ask you again about it though, because I may have misunderstood: if by doing away with the filesharing I gain the freeloading two who would’ve paid, don’t I still lose the four who wouldn’t’ve, but now do?

            So as far as I can see, that puts me down two fans — and the two fans I’m left with aren’t as into me as the four I would’ve had.

            To me as the artist…I’m not liking that trade-off, and don’t see how it benefits me. Heck, I’d be happy to lose four kinda-sorta fans, if I could have two committed fans instead! You know?

            Please do tell me if I’m missing something.

            • kalyarn says:

              That’s the question – we don’t know about those four people who may have paid if they knew about the material or were able to sample it in another way. Is filesharing the only way to get them.

              And the bigger thing is, these numbers are total fiction on my part – I have no idea what the ratios or statistics are…are there any? I could have easily said 7 people stop using and never would have bought, 2 people freeload and 1 person buys who wouldn’t have before due to filesharing. So in that case you’re trading 1 for 2 (or possibly 3, if that 1 could have been convinced to buy in another way than filesharing).

              In my original example, then yes, it’s likely that filesharing is helping artists. If its the one here, then it would appear to be negative. I have no idea which is the more likely scenario and I’m not sure how we’d find out beyond the anecdotal level (from both sides).

            • pillock says:

              Dude, so the numbers you offer are total fantasy, eh?

              Please turn over to the TRUTH…!

              That there is at least some evidence for.

            • pillock says:

              Sorry, super-hot under the collar, as I said before.

  4. kalyarn says:

    I’m also curious to see your thoughts on whether filesharing effects different media in different ways. In my view, music and musicians might be as harmed as much say by an author who’s e-book is pirated and fully available on the web.

    I think differences exist for two reasons: one, from the view that someone might download a couple of songs and then decide to buy the full album, while with a book (or movie) there is just one ‘unit’ to download and then they are done. Building on that, it would seem to require authors to work quickly and create lots of material to capitalize on that initial filesharing of their material which got the person interested. If an author writes only one book (or only one every couple of years), the “PR effect” is lost.

    Or perhaps I’m trying to split hairs.

    • Andrew Hickey says:

      Various authors (for example Cory Doctorow and Neil Gaiman) have given away, either temporarily or permanently, books for people to read on the internet, and have found that they certainly had no negative effect on sales, and may have had a positive one. Gaiman for example has had his book The Graveyard Book available for free as an audio book (http://www.mousecircus.com/videotour.aspx), but the book has spent a year in the top ten bestsellers.

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