To Share or Not to Share

Last week, a report emerged from the London School of Economics claiming that piracy is not harming the entertainment industries.  One of my new Twitter pals, Jean-Phlippe Vergne (@pirateorg) sent me a link to the report calling it “scientific” rather than based on “moral claims.”  I read the report, and there’s nothing scientific about it, particularly in that it lacks any statement of methodology (science likes methodology). Like other “studies” of its kind, this one begs the reader to make a very broad and unscientific leap to the conclusion that because gross sales of movies and music went up over a given period of time, we must therefore conclude that piracy is not having any ill effects on those industries.

Never mind that the report appears to double-count music revenues or that measurements like “box office sales” alone do not paint a complete picture of the economic health of the filmed-entertainment industry, but such measurements say nothing at all about the effects of piracy.  It’s a bit like saying America has more millionaires than ever before, so the economy overall must be very strong.  The lack of rigor in the report may be attributable to the fact that its authors are not economists despite the imprimatur of the LSE, but this didn’t stop the pro-piracy crowd from making hay out of headlines like London School of Economics Says Piracy Does No Harm.  After all, nobody’s going to read the report except those of us who play inside baseball.

Regardless, the report itself has already been criticized,  but I want to go back to this refrain my new friend, Mr. Vergne has played, which is the chronic implication that the subject of piracy should not be examined in a moral context.  Why not?  I suspect because it’s inconvenient to go there because even the pro-piracy crowd reveals the subject to entail a moral choice by repeating their favorite chant, “Copying isn’t theft.”  One has to buy that premise unequivocally in order to to believe that piracy is amoral, but does anyone other than a tiny group of soon-to-be-finding-a-new-hobby zealots really accept this premise as absolute?  I don’t think so.

Of the hundreds of millions of users of pirate sites, it is a comparatively small population, who actually copy files and upload them to these sites.  I have several younger friends who have downloaded music and films from torrents and the like,  but these same people would probably not go the next step and physically rip files from a disk to upload to a site, let alone take money for having ones and zeroes on their hands.  Subtle though it may be, I bet even that is a moral step too far for a lot of people, even though they realize that as viewers, they’re benefitting from the fact that someone else has crossed a threshold they wouldn’t.  This is common enough behavior.  Smoking dope is one choice, dealing it is another.

Most of us draw and redraw moral boundary lines while making dozens of choices a day.  We typically break laws in small and presumably harmless ways, but usually within some sort of self-imposed boundary unless we are irredeemably narcissistic.  For instance, I’m betting most of us would agree that speeding on an open highway with few other vehicles around is a choice that is morally superior to speeding on a city freeway. And the uniformity of the law or possible punishment has no bearing on the moral decision in this case. We make these choices and judgment calls all the time, and I don’t think making bad choices necessarily implies corruption.  Corruption begins when we permit ourselves to stop asking the the question, to assume there are no boundaries; and with regard to piracy, this is exactly what its proponents try to do — to give particularly young and inherently narcissistic people permission to stop asking the question.

But what boundaries might exist when it comes to this activity many of us call theft and others would like to call sharing?  By way of example, I recently committed a low-volume act of copyright infringement against one of my favorite musicians, Mr. Leo Kottke (sorry Leo).  My new production assistant is also a guitarist and a singer/songwriter, and while traveling on a recent shoot, I asked her if she knew Kottke’s music because I happened to have his first album loaded in the CD player.  She hadn’t heard Kottke, but she liked it a lot, so I told her to borrow the CD and copy the files onto her Mac.  Her slightly astonished look was more sincere than mocking, knowing that I write this blog and firmly support copyright.  What gives?

Good question.  It’s an argument that’s been made — that “file sharing” sites are just a contemporary and technologically inevitable extension of what pre-digital people like me have always done with media when we share with one another.  But is it the same thing?  What makes the difference?  Is it volume?  Is it about the technologies used?  Is it about presentation or delivery mechanisms? Or is it simply that I in no way profit financially from this exchange with my assistant?  Would Leo Kottke be mad at me?  Maybe, but I don’t think artists have ever cared much about this kind of one-to-one exchange. Plus, I can accurately state that my success rate in terms of fans made in this case as 100% fans for all recipients of the free media. But maybe that’s an excuse.   If I want to be altruistic about it, maybe I should send Leo $12.26 with an explanation that it’s the current Amazon price for one extra copy of his 1969 album “6-and-12-String Guitar.”  Wouldn’t he be surprised?

My choice to “share” in this instance is bound by certain conditions that, absent the larger debate about piracy, I doubt I would examine consciously.  Nevertheless, the first condition is that I would never think of the word sharing to describe an exchange that does not involve transmission of media to an actual person I know.  Absent the connection made, the rapport built, the camaraderie fostered by introducing someone to a particular work based on some quality I recognize in the individual, the exchange would be meaningless and empty.   As such, I find the conceit of piracy’s defenders who call that activity “sharing” to be a devaluation of human interaction in the same way mass IP theft itself is a devaluation of the human labor that produced the work in the first place.  Does anyone rationally believe they can “share” anything with several hundred million complete strangers?

A component of this condition that I share with an actual person is that I have a measure of trust in that individual — that she isn’t going to do something irresponsible with the files, but almost more importantly that she’s accepting the gift because she actually gets something out of the music.  We’ve seen evidence that the free media bonanza has led to a kind of habitual gluttony among younger users who may have thousands of songs on their iPods but have little to no relationship with much of the music they’ve collected. This phenomenon was in part highlighted when David Lowery wrote his famous letter to NPR intern Emily White after she boasted that she had 11,000 songs but only paid for 15 CDs in her life.

Another component of sharing only with a known person is of course a matter of scale.  After owning Kottke’s album for two or three decades, I personally increased the number of individuals with bootleg copies by one.  By contrast, were I to upload those same files one time to a pirate site, I’ve made the album available to roughly 2.5 billion people, which is to say the entire Internet-connected world.  It’s frankly shocking that any of the debate about piracy continues to get bogged down in comparing a 1:1 exchange with a 1:2.5 billion exchange, but I assume that’s why folks like Mr. Vergne prefer semantic games and a pretense of socially progressive philosophy (i.e. bullshit) over anything so clear-cut as numbers.

And scale aside, giving the Kottke files to my assistant remains within another boundary  in that I did not serve up this artist whose work I love to be exploited for profit by the owners of pirate sites. It doesn’t matter that Kottke’s music would be downloaded substantially less than, say, Lady Gaga.  It wouldn’t even matter if Kottke’s files were never accessed via pirate site simply because his fan base likely skews toward a demographic that doesn’t generally use these sites.  What matters is a gut instinct that if I could ask Leo Kottke his feelings on the matter, I’m guessing he’d be cool with the exchange with my assistant but would be insulted and furious at my uploading his work to the entire world so some parasitic individuals can profit from its trade.  And in this simple, old-school exercise of putting oneself in another’s shoes, the moral choice is clear.

© 2013, David Newhoff. All rights reserved.

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  • “…maybe I should send Leo $12.26 with an explanation that
    it’s the current Amazon price for one extra copy of his 1969 album
    “6-and-12-String Guitar.” ” Which would be swell as far as covering
    your debt to Mr. Kottke. But he’s not the only person who makes
    money when a copy of his CD is sold via Amazon. You’ve also stolen
    from the CD’s publisher and from Amazon. Your assumption that “he’d
    be cool” with this small act of piracy is precisely the same sort
    of rationalization used by those who pirate on a larger scale.
    You’re correct that “the moral choice is clear;” you’ve just
    decided that in this case, it’s OK not to make it. If piracy is
    wrong, then it’s wrong. Rationalizing your own theft while
    condemning that of others (and I’m in general agreement with that
    condemnation) is rank hypocrisy.

    • I hear you, Keith, and there’s no question that rationalizing one’s behavior always has at least a hint of hypocrisy. And I don’t ignore the fact that a record sale represents the income of several people; I write about that fact all the time. I share my thoughts in this context, though, in search of a more reasonable dialogue — a conscious choice between being what our antagonists call “copyright maximalists” and what we call “freetards.” Ultimately, I don’t think copyright ever needed to concern itself with guys making mix tapes for their girlfriends, but that should in no way be compared to the enterprise we call piracy.

      • Much of this was a home goal by the labels when they stamped “Home taping is killing music” on the LP inner sleeves in the late 1970s and 1980s. No one believed it, even amongst the recoding artists themselves. Simply because everyone know that by the time you’d got to the 3rd generation tape the thing was useless. Of course it is an entirely differ issue with digital where the content gets uploaded to the web, or people go from house to house with a TB hard disk.

        Now back in those days I taped everything I still have 100s of cassettes up in the loft, along with the vinyl they were recorded from. Selections of tapes went to work with me and were played on the shared tape player. I know of a number of punk rock fans that discovered Zappa, and Beefheart from tapes left in my cupboard. I discovered they’d been borrowing them when I called around and saw that they each had almost complete vinyl collections of the stuff they’d been listening to from the locker.

        But I suspect that if what I’d had in the locker was a pen drive with the complete works, rather than a couple of dozen tapes, they’d just have copied that and never have bothered with buying anything.

      • Actually, if you want to “make it right”, David, you can simply buy the album as a present for your production assistant – especially since, if I’m reading you correctly, she liked it. While this won’t actually make the act itself any less wrong – however much we may judge that to be – it seems like appropriate restitution on your part. It also means that all parties with a stake are justly compensated for the fact that your assistant has a listening copy.

      • Funny you should mention it, Faza. Not that this is what the post is about, of course, but I was thinking this morning that it’s actually more my style to adjust the cosmic balance sheet by buying two Leo Kottke albums for my production assistant.

  • Thanks for your honesty.

    BTW, as a musician/songwriter, i can say [for me and me only] that the type of [very limited] sharing mentioned: while not something that i give a stamp of approval for, i don’t disapprove of… if that makes sense.

    There just is no comparison between sharing person to person (1 to 1) and one to the world (1 to ∞). the former is a raindrop, the latter is a hurricane. A raindrop can’t hurt you, but a hurricane can destroy villages…

  • Bravo for injecting some much-needed nuance into the piracy discussion. Of course there is a significant moral distinction between letting a friend copy an album and uploading an album to the internet so millions of strangers can have it. We will get nowhere if zealotry dominates both sides of this discussion. Piracy IS wrong, but is copying an album for a friend usefully labeled “piracy,” or “theft,” for that matter? Your morally sensitive discussion deserves praise; you are not a hypocrite, you are a human being, as are we all. At least until the robots take over.

  • Copyright started to become controversial when it interfered with the ordinary dealings of individuals. Back when it is primarily an industrial regulation against printers and publishers – before the information age, it wasn’t very controversial. But today, copyright can no longer realistically function as a law for promoting creative arts.

  • I commend you for your bravery though. Your tiny infraction of copying a CD carries theoretically millions of dollars of liability, $150,000 per song copied for that matter. Copyright law makes too little a distinction between sharing a mixtape with a girlfriend and operating a international piracy enterprise.

    • If that were the case there would be 1,000s of people in court every year.

      • And therin lies the problem. Our law is so broad and draconian, it is by its nature be applied selectively. Selective application of the law is the basis for tyranny and corruption.

      • I think that’s a very dangerous position. I want the law to be applied on a case-by-case basis. Isn’t that central to having a humane criminal justice system?

      • When the hated RIAA took people to court they didn’t whack out at everyone downloading songs. They went for those that were making available 1000s of items to the world. Even then they first sent out cease and desist letters. Then they went after those that didn’t cease and desist with some nominal bill, and again, and again. Right up to two individuals that refused to cease and desist.

        Now this is like to take David’s speeding car analogy getting pulled over for doing 150pmh down the road and told not to do it again, then getting clocked by the same cop later that day doing the same thing, and the following day, and the following day. Then when eventually brought before the courts justifying not ceasing to speed because others do so and don’t get caught.

        People don’t get dragged before courts for making mix tapes for friends, they get dragged there when the distribution of mix tapes is at a level that is detectable.

      • So what I am hearing is there is nothing wrong with the fact that sharing a CD (ie. David’s actions) can ensure someone theoretically millions of dollars of liability. Because the law won’t be used..

        If you have draconian laws that apply to most of the population and selectively enforce them you taking away the power of the laws themselves. Instead, you put all the power INTO the people who enforce them (ie. the government and its officials). This is the classical method totalitarian or simply corrupt governments manifest themselves.

      • Actually, totalitarianism arises when we weaken or abandon laws that protect the rights of individuals, like the ones protecting creators. I think your read on the law and its application is flawed and narrow. Plenty of laws carry potential penalties (or remedies) that are pursued on a case-by-case basis, corruption or racism notwithstanding. Having the penalty in place merely gives a plaintiff options, but does not mandate the plaintiff exercise those options. In the case of Joel Tennenbaum, for instance, people read the headline “downloaded 30 songs and is being sued for 2 million bucks” and think that’s absurd. And I’d agree that it’s absurd, unless you look at the case. To John Warr’s point, Tennenbaum received and rejected multiple warnings to stop his chronic downloading, rejected lesser fines, and chose to make himself the face of lawyer Charles Nesson’s attempt to go after copyright law itself. By gunning for the principle, Tennenbaum leaves the plaintiffs no choice but to pursue strenuously in defense of that principle, and they’re still not going after him for the maximum possible amount. There’s a lot more nuance to these stories (to most legal cases) than most people perceive.

      • Maybe I’m kind of radicial (or “freetard”), but I’m finding these continued justifications that copying a $12 dollar CD should carry millions of dollars of liability rather weak.

        Maybe it is radical, relatively speaking. I realize that there are plenty of people who think this doesn’t go far enough (I’ve argued with pro-copyright folks who want the DEATH PENALTY for copyright infringement – not kidding).

      • David,

        Also I find it interesting that you seem to validate my point. Tennenbaum’s crime was similar to yours. But his fine was to “teach him a lesson” for not immediately accepting and whatever accusations and conditions were levied against him. The fact that he he was young guy who maybe had illusions that we live in a democratic society with due process, and that had to be corrected. That’s why he was punished, not because he copied 20 songs. Even people with pro-copyright blogs do that.

        I’m sure you and others feel like he got what was coming to him, but I think cases like Tennenbaum provide great examples of everything that is wrong with the copyright system, and why it needs to be curtailed, if not outright repealed.

      • The more I think about it, that’s exactly the message I’m getting here.
        I can’t see any reason why shouldn’t be getting a similar punishment to Tennenbaum.

        What I’m trying to get through my head is that it’s okay for you David to commit copyright infringement. I was ratting on FarePlay awhile back because he would just copy/paste random images onto his blog without asking for the photographers permission, and I commend you for actually putting more effort into following copyright. I see that this was misguided. In many ways, FarePlay’s actions are more acceptable, because copyright control on photography is just so ridiculously broken at this point, and nobody really thinks about even the idea that a photo could be copyrighted. I believe that it was not conscious copyright infringement, but it’s hard to say that same about copying a CD.

        So I’m really trying to think of what makes your copyright infringement justifiable, but I can’t find any excuse. Because you didn’t “put it online” (I don’t think many people do this consciously when they fileshare anyway)? Or is it because you have a pro-copyright blog?

        But you tell me here, and you say as it is should be rel event: the fact that people like Tennenbaum challenged the very idea of copyright – that’s what is not acceptable. And the record companies were being generous with him. He was given opportunities to kiss the ring. And he didn’t.

        That was his crime.

        So really, copyright is not being used to punished for copying songs, rather it is being punished for a political thoughtcrime. That’s of course, why the harsh penalties are justifiable. Because daring to challenge the business model of copyright itself, that’s the kind of behavior that the content industry wants to stop more than anything.

      • What can I say? You see nuance, like some people don’t see a full spectrum of visible light. As for the difference don’t see, one point you fail to get is that it isn’t up to you, M. Remember, a plaintiff has to want to pursue a case. My whole point in raising this in the way that I have is to show that those who believe in copyright as a principle are not extremists and never have been. I’m betting Leo Kottke or whoever owns the rights won’t sue me even though I’d support their right to do so. See? And if you can’t see the difference between this kind of exchange and “sharing” files with the whole world, well, there it is.

        I won’t comment on anything to do with some nutter you’ve encountered who wants the death penalty for copyright infringement. Who cares? There are crazy people who believe all sorts of things. It’s ridiculous to pretend they represent any serious points of view.

      • The issues are different. In the one case someone makes a copy of a work for a single friend. In the second case some one makes 3000 items available to hundreds of thousand of people. The difference is quantitative rather than qualitative. Its the same difference between passing round a reefer and having a hydroponic skunk facility in your spare room. Both are technically supplying, the law manages to differentiate the two.

      • All true, but I’d also repeat that “the law” doesn’t do anything by itself. A state doesn’t even take on a civil case like this. An injured party has to choose to sue. And the whole reason I threw myself on the sword in this case is to prove (God I hope so) that creators and rights holders are generally not extremists who want to cut off infringers at the knees. As such, this rhetoric should disappear from the discussion altogether and clear the air for talking about piracy for what it really is.

  • BS.

    in your mind maybe, but the application of the law has NEVER been thus as you just described…

    • Technically, everyone’s a little bit right, which is the point of the post. M is right about the letter of the law, James is right that it really has never been applied to infringements such as I describe. Am I being brave admitting to this example? I don’t know. Technically, I could be sued, but I am betting that, particularly in 2013, artists and the recording industry would LOVE to see a market where “sharing” meant sharing, and not feeding a multi-billion-dollar, black-market industry. That doesn’t mean the law should be rewritten per se. I for one am tired of the pro-piracy crowd using spin tactics to tell the public that the enterprise they justify is only a variation on the kind of low-level infringement nearly everyone has committed at least once or twice since the availability of cassette tapes.

      • hehe, my comment was in reply to M’s [October 12, 2013 at 11:05 am] comment above.
        Didn’t hit the right ‘reply’ tree.
        Never in the history (that i’m aware) of copyright was there ever someone brought in front of a court for a single mix tape.

        Hell.. there’s enough problems in bringing the major black-market-organized criminals in front of a judge (mainly that they’re usually in safe-haven countries).
        Even the two cases of individuals brought in front of a jury were from a decade ago. this is just a red-herring brought out by the pro-piracy crowd. No one is going after individuals for mix-tapes.
        As for speeding, yeah, technically they can pull you over for doing 1mph over the limit (hell, i’ve gotten a speeding ticket while doing 5 UNDER, while it was raining) but the further you go over the limit, the more jeopardy you are putting yourself, but more importantly the Other pedestrians/drivers… and thus, the more likely you will be ticketed. Does this negate the speeding laws? that you can ‘get away’ with ‘a little’? Or does your whole argument fall apart under even a cursory inspection…?

      • I don’t this argument at all James_J. It’s a slippery slope. Why have maximum penalties at all? We not just give the power to the judge to dole out the death penalty or the most serious punishment on any crime?

        The reason why laws have penalties PRESCRIBED BY LAW is because we don’t trust the establishment to be inherently fair. Actually, that’s entirely why we have a law, a constitution, all that stuff is to curtail the power of the establishment in support of the people. You’ve heard of “equal protection under the law”, right?

        If the government was completely fair and impartial, we won’t need a written legal system at all. We can just use the judge’s abstract ideas of justice and punishment to guide the system. Actually, this is how some civilizations actually worked in darker times.

        Equality under the law is absolutely important. And the law itself needs to be fair, you can’t outsource doling out fairness on the government.

      • What are you even talking about?

        WHAT world do you live in?

        Also, and i don’t want to get into this YET AGAIN, but Tennenbaum and the other dummy wern’t take to court for ‘downloading’ 20 songs.. they were DISTRIBUTING 1000’s of songs (and for brevity they were only brought up on 20). There is a big difference from somone downloading something and the site/persons that make said something available. If YOU don’t see the difference there, i cannot help you. There’s no point in further conversation if you can’t see this point, or at least acknowledge it… how many years now have we gone over this?

        ~thick is not cute, it’s annoying

      • Tennenbaum and the other dummy wern’t take to court for ‘downloading’ 20 songs..

        You are right, Tennenbaum was sued for 30 songs. That’s like two CDs, meaning David is only half a criminal as Tennenbaum. Changes everything I think.

      • You see, James, the way it works is Al Capone was only ever guilty of tax evasion.

      • they were DISTRIBUTING 1000′s of songs

        Unproven accusation. Tennenbaum could have done 9/11 too, for all we know. (Maybe that’s why the record industry went after him, plot twist.) The only thing the court found was that he committed was 30 cases of copyright infringement.

        The idea that they can sue him for a tiny fraction of what they accuse for (for “brevity” of due process, a totally positive way to run a justice system), and still get million dollar judgements only helps to make it more absurd – not less.

        There has been cases where copyright holders have had potential liability levied against companies that was higher than the national debt.

        So are you seriously going to continue arguing that this is totally legit and working? If so let me help you. I have an idea. Change the copyright infringement damages to “infinity dollars”, it would have the same effect.

      • Of course, I’m being theoretical here. In reality, this government is unable to pass requisite legalization to stay operational. I’m sure fixing broken laws is so very high on their to-do list.

      • Since this is ‘such a problem’ ,M, why don’t you list for me all the people being sued besides the 2 aforementioned?
        Heck, give me ONE!

        That’s what i thought…

      • In many cases the prosecution only brings specimen charges against a defendant, they bring enough instances to achieve the desired result and no more. In Joel’s case it was 30 songs. The plaintiff in this case didn’t suggest a minimum or maximum amount, that was left to the jury and in all case the jury, normal people not lawyers nor judges nor copyright twonks but normal people, came up with huge penalties.

  • One thing I think has gone largely unremarked about the LSE report is quite how controversial the video game tactics they advocate are.

    Free to play/Microtransactions are widely hated by hardcore gamers, most of whom would much rather buy a complete game. See this rant from RockPaperShotgun:

    Microtransactions in a game of strategy turn it into a game of business rather than a game of a strategy, the interruption of an in-game economy with real world money totally disrupts fantasy and immersion, and free to play on any level beyond cosmetic differences or buying new chunks of carefully-made content is bullshit designed and defended by people whose interest lies not in the creation of great games, but in consciously abusing player compulsion in order to make money. Do not listen to their self-serving lies.

    As you can tell, feelings are running pretty high on this at the moment. It just strikes me as weird for them to be advocating something quite so hated without even acknowledging that a lot of people have a real issue with it.

  • Also, I wouldn’t really worry about taking money from Amazon. Tax dodging, worker abusing scum that they are. Of the new industrial robber barons, they’re one of the worst.

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