It’s not the song, Stupid, it’s the right.

No doubt, the U.S. Pirate Party will be in a caffeinated kerfuffle over yesterday’s upholding by the 1st Circuit Court of Appeals in Boston of the $675,000 fine being levied at Joel Tenenbaum for illegally downloading and sharing 30 songs several years ago.  And no doubt anyone under the age of about 35, who very likely has a lot more than 30 illegally downloaded songs in his possession is thinking, “Dude, this is ridiculous. That’s too big a penalty for just downloading music. If you follow the debates surrounding copyright in the digital age, you will frequently encounter the slogan “Copying Isn’t Theft,” and the argument behind this assertion goes as follows:

If I take your car, then I have your car and you no longer have it.  That’s theft.  But if make a copy of your car so that you have your car and I have the copy, that’s not theft because you still have your car.

Of course, it’s not possible to digitally copy a car, but the copy zealots still assert that the logic holds up when we transfer the discussion to authored works that can be digitally reproduced and distributed.  In short, “I have the song, but I have not taken your song, so I have not stolen anything. And, by extension, the other ten million people who have copies have not stolen anything either.”

As the father of three, I recognize this as classic kid logic, which is invariably based on the unilateral premise that individual desire trumps all competing forces, particularly any matters too complex for the child to comprehend.  When my five-year-old wants something, he will propose what sounds to him like solid reasoning but what is really just a variation on the theme “because I want it.”  Of course, one of the many thankless roles of the parent is to teach children that indeed there are considerations beyond their individual desires — health, safety, fairness, legality, courtesy — that shall be enforced whether the child understands the principle or not. The hope is that, as they grow, they will understand the principle, not merely the rule.

What the children of the digital age need to learn as they are now entering the world of grown-ups is that it’s not the song or the movie or the book they’re stealing, but the rights of the creator.  When a few million college kids copy and share a digital file of a creative work, they believe this is not stealing because 1) they’re focused on the file itself; and 2) they’re focused on what they want.  And it is always the folly of youth to confuse desire with rights while failing to recognize, to paraphrase Kant, that their rights end when they infringe on the rights of another.

Imagine you’re having a blow-out party that’s going well into the wee hours.  You’re not committing any serious crimes, but you are keeping your neighbor awake, who finally gets fed up and calls the police.  When the police arrive and tell you to turn down the volume, you may think The Man is infringing on your right to have a good time, but the reality is that he’s balancing your right with your neighbor’s equally valid right to a night’s sleep in his own home. This may seem like a prudish example, but it really is that simple.

Copying is a violation of an individual’s right that has been part of our constitution for as long as we have had a constitution. The person doing the copying may think his own actions are irrelevant in the scheme of things, but we see many examples where individuals, especially younger people, are willing to take personal responsibility for collective harm.  Shifting attitudes  toward environmentalism is perhaps the most obvious; my children don’t know what it means not to recycle, but this was hardly the norm during my own childhood.

The generation that enjoys media enough to want to copy and share it in such high volume needs to understand that creative work is a resource that can be squandered like any other; and there are legitimate data to prove the harm being done to creative industries by illegal downloading and file sharing.  If those industries fail, they take millions of jobs with them (maybe even a job these same kids would like to have one day) and quite possibly the music, books, and movies will disappear, too. It is time to stop listening to vested interests (namely Google) who tell you it’s not only okay to copy, but that it’s a right and a societal benefit.  This is simply not the case.

I feel a little bit bad for Joel Tenenbaum inasmuch as he did something that he has been told is innocuous.  His legal team has likely convinced him that he’s a poster boy for the cause of free speech, freedom of information, transparency in government, anti-corporate-greed, and probably a few other causes that are in no way related to what he actually did.  The unfortunate reality is that he was a grown-up who made a childish decision; and he now has a grown-up problem on his hands.  I hope when the case is finally closed, that Google will at least pay his fines.  To be clear on this case, Tenenbaum’s real mistake is not the downloading of 30 songs per se.  He was a recidivist downloader, who refuted C&D requests, offers of relatively minor fines, and chose to fight this battle on principle.  I don’t think anyone should be pulled out at random to face potentially staggering penalties.  Tennnebaum’s choice, however, to be the face of a precedent-setting case forces the recording industry to pursue vigorously.  It is on principle where Joel Tennenbaum is wrong.

ADDENDUM:   In fairness, and apropos of a comment I received on this post, I ought not to have suggested Google pay Tenenbaum’s fines but instead suggested that his lawyer, Charles Nesson, do so.  This is not a David and Goliath fight.  Nesson, through Tenenbaum, is gunning for copyright law itself and banking on a Supreme Court appearance and a landmark, law-changing case.  So, while I do blame the likes of Google for fostering a general psychology about file sharing, I think it’s fair to say that Nesson’s hubris is the fuel behind this particular case; and when they lose, I hope Tenenbaum won’t be left alone to pay the bill.

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