Is File Sharing Stealing?: Intellectual Property vs. Real Property

With the advent of new technology, the music industry found itself out of touch and behind the times in its own field. Its response was not to change with the times and capitalize on it, but to try and keep the good old days alive and well in spite of the consumer. With harsh words, the music industry has been on a witch hunt for those it charges with stealing music. The question is, "Can someone really steal something that is not of physical property? " More importantly, who is more at fault for this situation - the accuser or the accused? Does intellectual property in the case of a downloaded music file have the same protection as real property? The issue of creative property and its actual value has become the central issue in the debate over the rights that a copyright really has.

The music industry claims that their declining CD sales are because of music downloading, both legal and illegal. The fact is years of price gouging and the artificial creation of hits and top artists have caught up with the record companies (Philipson, 2008). The concept of the album has begun to disappear as well. For example, when record company EMI invited a group of teenagers to its headquarters to gauge their music habits and asked them to help themselves to free CDs, nobody in the group accepted the offer. Digital technology and the internet have brought the record companies undone (Philipson, 2008). The monopoly they once held on trade and manufacture of new releases have disappeared. Anybody can record and mix music of equal quality of an expensive recording studio and in turn use the internet to promote and distribute their music. The old system made its money by controlling the entire cycle. However, the business model has changed. What used to be impossible for an artist to find is now possible without the help of the music industry. The final distribution phase is now under attack. The power of peer to peer sharing has allowed artists to go straight to a consumer with the same pay for performance model that existed before copyright laws. The music industry's response was the development digital rights management or DRM, which prevents people from transferring music files. With the inevitable death of the copyright, the music industry needs to evolve instead of cling to the past (Philipson, 2008).

The enforcement of copyright laws is from an outdated analog-era notion of scarcity (Healey, 2008). This view suggests that copyright holders benefit from file sharers. The first to practice this concept was Napster. Defined as a file sharing network, Napster defined illegal downloads as sharing, not copying or duplicating. The idea is that users were being generous with something they possessed and not taking advantage of the rights of the copyright holder (Healey, 2008).

According to Milton Friedman, a Nobel Prize winner, copyrights equal monopolies that decrease supply to a level below optimal level. A copyright is a limitation of free speech due to the regulations that follow it (Healey, 2008). In the "The Fatal Conceit: The Errors of Socialism", F.A. Hayek explains the difference between property rights and copyright as the supply of resources being limited by nature, while the supply of an immaterial good is unlimited, unless the government limits it by law. However, Karl Sigfrid argues that illegal downloading is not theft (Healey, 2008). Sigfrid's stance is that an object that is in unlimited supply cannot possibly be stolen. The other side of the argument is the position held by the record labels that copyrights are property with the same protection as real property such as a home or car. Their counteraction to the concept of "sharing" was in the form of another metaphor, downloading is theft. The Recording Industry Association of America has combated the rise of illegal downloading with the imagery as file sharers as "pirates".

However, Sigfrid contends that there is a difference between intellectual property and real property. Real property is tangible and limited in supply. Intellectual property is formless and unlimited in supply. According to Mark Lemley, a Stanford Law School copyright expert, copyright infringement is not the same kind of theft as the physical taking of a CD from a store. He also states that "if I take your physical property, I have it and you no longer do. If I copy your song, I have it, but so do you." Lemley suggests that the music industry's use of metaphors have backfired. However, he says copyright infringement is wrong and should be punished. But, simplistic statements of it being just like stealing a CD are wrong and counterproductive because even though people know it is wrong they are likely to ignore this fact (Healey, 2008). The use of metaphors in the debate over downloading music provides a tipping point for either side.

Illegal downloading may not be larceny, but it fits the notion of theft (Healey, 2008). The copies that are shared cost nothing to produce, but the data being copied has value. It is fair to say downloaders acquire this value without paying for it. Some argue that they are not causing any real losses for the copyrights holder because they eventually buy new copies of what they previously downloaded. This rationale is not enough to dissuade action from being taken against downloaders. According to Supreme Court Justice Stephen Breyer in the MGM vs. Grokster case, "Deliberate unlawful copying is no less an unlawful taking of property than garden variety theft." This delivers a blow to the stance that no harm is being done by downloaders.

As a result, copyright owners want the public to view illegal downloading in the same light as shoplifting. The owners want intellectual property to receive the same respect as real property does. There is a debate as to how long a copyright should last and who should be responsible for safeguarding against piracy. To compare intellectual property to real property tilts the debate in the favor of downloaders when the social goal of copyrights is taken into consideration: "to promote the progress of science and useful arts," (Healey, 2008). To achieve this goal, there needs to be a balance between the interests of content creators and those of the public's, which is a more complicated task than a legal protection against theft.

One claim the RIAA makes in defense of the artists' rights is that they have the best interest of the artist in mind. The fact is the RIAA does not have the artists' interests in mind as they claim (Reisinger, 2008). The RIAA has single-handedly destroyed the music industry and by doing so have left the artists high and dry in the RIAA's fight against music downloading. The RIAA and digital media companies believe that the nine cents they pay artists for each physical copy sold or digital file downloaded is too high. They believe artists should "accept less money in order to keep the whole industry alive," (Reisinger, 2008). Representing the artists, the National Music Publishers' Association, whose stance is the artists should be making more per download copy because digital media costs much less than it does to produce a CD. This proves there is more profit to be shared between the record companies and the artists. The NMPA wants fifteen cents per track for the songwriters, however the RIAA wants that rate reduced to five or six cents per track. This issue is yet another example of how the RIAA as an organization does not fulfill its obligations to the artists they are supposed to be representing. This is the same organization that has said that college students have yet to reach full development when prosecuting them for allegedly knowing full well the consequences of downloading music. Now, the RIAA is trying to destroy the artist's opportunity to make money (Reisinger, 2008). Their defense of illegal downloading being detrimental to the artists is faulty when you take into account how they personally treat the artists.

The internet is open to all activity, both legal and illegal due to a lack of regulation by any kind of sanctioning body. An example of what may be to come is a proposal by the British government to hold internet service providers accountable for their customers' behavior, primarily digital piracy (Scott, 2008). If passed, it could put sanctions on internet service providers who fail to stop illegal downloads and turn over details of the activity of customers who infringe intellectual property rights. This policy could hurt legitimate downloads and hurt ISPs financially. However, it raises privacy and free speech issues. Under the common carrier principles, communication companies are not legally responsible for the traffic that is carried over its server, even if the activity is clearly illegal. This proposed plan would turn ISPs into police. According to Simon Halberstram, a Internet law expert, internet service providers cannot possibly tell the difference between legal and illegal activity that is conducted on its network. If that protection is taken away, "ISP could start to stand for Internet Service Policemen."

Internet service providers recognize the need to fight illegal downloading, but would rather work with content providers instead of a legislative solution that would strip them of the protection they have always had. Any action would have to consider the financial and legal issues that would be produced by the service provider having to police it (Scott, 2008). The fact of the matter is internet service providers have no legal liability for illegal file sharing because the content being shared is not hosted by their servers (Scott, 2008). Record companies do not share this feeling and blame the ISP for their failure to prevent piracy. Industry officials agree that a law forcing ISPs to police the activity being conducted on its service would help in their fight against copyright infringement.

The RIAA has tried numerous tactics for combating illegal downloading of music. Recently, a claim was filed against a couple, who ripped their entire CD collection to their computer in the form of MP3s. The main objection by the RIAA is that ripping CDs to MP3s is a violation of copyright laws and the fair use doctrine (O'Brien, 2008). However, this contradicts the ruling handed down in the case of MGM vs. Grokster that made digital copies of music for personal use legal (O'Brien, 2008).

Another possible action that the RIAA wants to implement is access to PCs through a virus scan. Through a scan, they want to ensure that everyone's files are legal and if a file would to be found that does not belong to you, authorities would be alerted (Stevens, 2008). The question is how can anyone determine what file is legal and which ones are not. The problem is that any possible scan would flag any music file that does not have a DRM attached to it.

These methods would intrude upon the basics of privacy all in the same of assigning blame for the rise of illegal downloading. They are nothing more diversions from the issue of what value does intellectual property actually carry. Short of relinquishing all content control, there is no viable method to completely stop file sharing from happening. The various methods that want a Big Brother presence over the internet in an effort to stop illegal downloading from happening are very unrealistic and most of all very unpractical. The internet will remain an "old West" because of the virtual anonymity at work on the Web. The music industry as a whole has to change with the consumer's tastes instead of staying static with their decades old philosophy of having free reign over the entire process.

The DRM is a good idea for the music industry to keep track of the legitimate music files, but it is too restrictive when it comes to the public's need to have everything in portable form, such as the iPod. The DRM has not worked to deter people from stealing music. Apple CEO Steve Jobs delivered a blow against the DRM when he publicly came out against the copy protection. According to Dan Costa, DRM is not a bad idea if you believe a song has any value at all and that artists should be paid for their work. As designed, DRM does not prevent people from stealing music, but also it makes it difficult for people who purchase music legally. Costa says there is no way the recording industry can regain complete control of distribution. So it is not a sure fix and neither are lawsuits, which Costa calls legal Whac-A-Mole.

One possible solution could be in the form of some outside the box thinking from the record companies. They should allow artists to have more control over the rights that their works have. If the artists want their work to be free to be shared through untraditional means, then the record company should allow it. Keep in mind that the artist, not the record company, sells their music through their own merit. The record company just happens to distribute it. Today, artists can go straight to the consumer and the business model practiced by the music industry should reflect that. File sharing should not be an issue because the file had already been given approval to be shared by the only person that counts, the artist.

Another possible solution applies to the lawsuits being brought on file sharers by the RIAA. These lawsuits have been very indiscriminate of the quantity of files these people allegedly "shared". It does not matter if a person downloads five or five hundred songs, the RIAA will treat them like the dangerous criminal they want them to be portrayed as. To be realistic, the RIAA should give up the fight due to the mass quantity of possible defendants there would be. To save another drain on the already pointless lawsuit weary court system, the RIAA should grant amnesty to targeted file sharers who have yet to have their day in court. This would be a plus in a public relations sense because of how much of a villain the RIAA has become due to its indiscriminate nature of going after anyone who crosses them.

As for allowing the artists to have more control over how their work is distributed, this could prove to be troublesome because the record companies will not just allow their artists to freely let their works to be open to the public without a fight. This solution was made up from purely common sense with some daydreaming involved as well. Think about it, if a song was made available with the approval of the artist, there would be no issue of rights because it had already been given the artist's approval. To make it a reality, record companies would have to let go of the mass control that they have enjoyed since its beginning. However, this is virtually unlikely.

The solution of granting amnesty to file sharers that have yet to see their day in court is wishful thinking. The RIAA is driven to recoup what they believe to be substantial losses due to infringement. It will not stop file sharing, but its intention is to save the time and effort that would be wasted on pursuing these lawsuits. It would go a long way to improve the agency's reputation with the public. The fact is the entire industry should consider how it all got to this point instead of laying the blame on the very people who keep them in business.

An amnesty program already exists but it is not well received. The RIAA's Clean Slate program offers amnesty for illegal downloaders in exchange for a pledge to rid their hard drives of illegal files (Holland, 2003). The issue is that it does not stop other organizations from attempting legal action. However, the music publishers have no plans of picking up where the RIAA left off. Child psychologist Dr. Michael Rich sees the effects of the amnesty program to be detrimental to the children affected by it. According to Rich, "the message of punishment, shame and paranoia communicated by the music industry's strategy has completely drowned out any effects they may have made to educate the public about intellectual property theft." The success of any potential amnesty program will always have its detractors, who see file sharing as needing to be punished without exceptions.

According to a survey of 50 college students, the mood about the issue of music downloading varies. When asked if downloading music should be permissible, 54% responded yes, while 46% responded no that it should not be allowed. This contradicts the next result from the question of have you ever used a file sharing program. 82% of respondents answered yes, they have used a file sharing program, while 18% have not. The results to the question should amnesty be granted to file sharers targeted by the RIAA reflect an overwhelmingly favor of it with 74% in favor of amnesty and 26% against. However, 56% of those questioned felt that it was unethical to download copyrighted music for free. Even more contradictory, 80% responded that downloading music is not the same as stealing a CD. These results reflect a lack of clear attitudes towards file sharing all together. A slight majority was in favor of downloading music to be legal, but a substantially larger majority has used a file sharing program in the past. Either these people that responded no to the question should downloading music be permissible had a change of heart about this issue or they are afraid to admit they want their music to be free and readily available for download. The same goes for the question of ethics versus is downloading music the same as stealing a CD. The majority felt it was unethical but even more felt that it was not just like stealing a CD as the music industry wants to label it. However, a vast majority is in favor of amnesty for file sharers. This tells me that people for the most part find lawsuits to be pointless in the effort against file sharing and accomplish nothing but headaches for the court system.

I do not think creative property can have a specific monetary value attached to it. To put a price tag on an idea defeats the purpose of creativity. The true value can be found in its content. The concept of file sharing is not intended to be malicious. It is not stealing in the sense of depriving someone of something that is their own property. The RIAA is hypocritical in its defense of the rights of the artists. The very thing they claim to be defending is the same thing they are undermining. However, file sharing is wrong and should be punished when it is found that the people downloading these files are making a profit off of these copies. That is one concession I will make on this issue.

References

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