Downloading music & movies? wrong?

[Tom Wetmore]

Oil isn't really a good product comparison other than what I was responding to as a justification for going for the free download of copyrighted material - unfair market price of the product.

The pharmaceutical product comes much closer since drug pricing is based substantially on exclusive patent rights to a drug formula. The actual physical ingredients are typically a tiny part of the cost. What you are really paying for is the creative R&D efforts to develop drugs rather than much to do with a manufacturing process. Once the patent expires and the formula enters the public domain, others manufacture the drug at a fraction of price of the original. It is not a perfect parallel, but comes closer to entertainment products with inflated pricing based on exclusive intangible property rights.

[Flyboy]

The pharmaceutical product comes much closer since drug pricing is based substantially on exclusive patent rights to a drug formula. The actual physical ingredients are typically a tiny part of the cost. What you are really paying for is the creative R&D efforts to develop drugs rather than much to do with a manufacturing process. Once the patent expires and the formula enters the public domain, others manufacture the drug at a fraction of price of the original. It is not a perfect parallel, but comes closer to entertainment products with inflated pricing based on exclusive intangible property rights.

The only problem with this analogy is that you can't loan out your meds after you have already taken them. That's what the issue is. Until digital media there has never (or has there?) been an issue with loaning out one's music, books, and movies. People have always done it, libraries do it. Once one person buys a product it should be his or her right to do with that product what he or she pleases. If they want to loan out the product then the record companies should not now, after decades of not doing so before digital media, try and prevent them from doing so.

The labeling of "crook" and "stealing" is exactly my point. Those who use it, in my opinion, have been hoodwinked by the recording industry who has made this into an issue of right vs wrong, when for them it is, instead, an issue of money vs no money. Yes, I know, that means most of you have been hoodwinked. (Relax, just kidding).

To me, the heart of this issue is not whether the issue is right or wrong, obviously I don't believe downloading is wrong.... EXCEPT for the fact that the law has been manipulated so that now if I do it it is illegal. This is the only problem I would have with downloading, because the Bible commands us to render to Caesar what is Caesar's. But just because it is illegal does not make the actual concept of downloading one that would be immoral, regardless of whether legal or illegal. Breaking that law makes one a lawbreaker, but not, in actual fact, a crook or thief (except by definition of the law). But as we know law does not necessarily equal just.

[Tom Wetmore]

That's an interesting line of reasoning... OK, I think I understand now that you are trying to make a distinction between man made law and moral law or perhaps ethics. Fair enough. I have been looking at it from my perspective as a lawyer so I haven't really been focused on the morality of downloading. (Of course if we are looking at it from merely a perspective of ethics, breaking a civil law is an ethical violation for a lawyer. So that resolves itself rather quickly in my mind at least.)

But I am not so sure I follow the logic of trying to distinguish the definition of thief as being outside of the scope of the definition of lawbreaker. Without the law, moral and/or civil, would you know what a thief is? The law defines what a thief is. I think at its core, both moral and civil law essentially define a thief as one who steals and stealing as taking the property of another without right or permission.

The problem is with the definition of property. Under moral law, what is property? Under civil law, what is property? Is there a difference? Why or why not?

I think we can stop going in circles once we resolve these questions.

[Stan]

"In the beginning" in England, books had a notice them that they could not be loaned out or resold.

I bought one in a used book store that had that in it, I loaned it to a friend and never got it back. True Story.

[Guest]

They told you not to loan it out. You should have listened.

[Flyboy]

Without the law, moral and/or civil, would you know what a thief is? The law defines what a thief is. I think at its core, both moral and civil law essentially define a thief as one who steals and stealing as taking the property of another without right or permission.

The problem is with the definition of property. Under moral law, what is property? Under civil law, what is property? Is there a difference? Why or why not?

Without law would I know what a thief is? I would argue yes, for two reasons. Firstly, because the law is written on all men's hearts. Do you need a law to tell you that lying or murdering is morally wrong? Secondly, there was a time when there was no codified moral law. Where did the inspiration come from to codify it the first time? It came from the innate human knowledge that certain things are right and wrong. There have been, still are, plenty of remote people's who have not been exposed to a codified moral law, yet the still follow the same laws we follow regarding stealing, lying, murder, etc.

I think the issue here, as far is it becomes a moral one, is determining who owns the property. Once it has been sold to a user, am I stealing the property if a user (one who has purchased that IP from a store, legally) willingly lends it out to me? This is the crux of the issue. I would argue that, based on decades of precedent and the fact that libraries loan an freely, the recording industry really has no basis on which to realistically hold their position. Obviously the recording companies disagree and they feel that they own the rights to the music.

So, Tom, a question, since you are a lawyer. I understand the issue of 'one user at a time', although I also think this is an outdated concept that is only in place because of money. The question is this: Legally, what is the difference if I have a friend back in the 80's who makes me a copy of their favorite mix tape, recorded from the radio, and if that same friend allows me to download a copy of their favorite CD? OR, if the friend has converted their mix tape to a CD then uploaded it and allows me to download it from their computer? Morally, I do not see the difference.

So, yes, the difference in my mind is a truly moral one vs. one that is legal with no moral basis. Defining what a legal user can do with the property he/she has purchased seems to be the key. Big money has pursued this as an issue of "stealing" when, in moral fact, that has not been determined to be true.

[Tom Wetmore]

When I speak of "moral" law I have in mind what you are essentially describing, what is generally called "natural law".

But regardless of whether we are addressing civil or natural law, stealing is a violation of ownership of property. But before we can determine ownership we have to define property. In law school property class we were required to write a paper answering that question - What is property? Where the conflict arises is over a lack of a common understanding of the answer to that question. Let me illustrate with an example of a property concept that may seem odd to a typical Western mindset.

A culture that I am familiar with determines rights to real property by use. (This is not unique. Other non-Western cultures have a similar outlook.) Vacant unused land belongs to nobody. If it isn't being used for anything or by anyone, a person may lay claim to it by putting it to use. As long as they are using it nobody else may encroach upon their use of it. When they stop using it, it becomes common property that anyone else can take charge of and begin to use.

So, what is property? Here is a starting point - http://en.wikipedia.org/wiki/Property_rights

[CoAspen]

Wow! No wonder the wild west rights were determined by the fastest or biggest gun!!!

It would take a lawyer to work their way through all of those consepts and verbage!!!

[Flyboy]

Thanks for that info Tom. After looking at the wiki info it seems that, as with most legal issues, a convincing argument could be made from either side of the IP law. The definition of property being the key.

Since, based on definitions, both sides are supportable, would the legal argument then not fall back on precedent? If so, then why have the record companies been able to push this through and successfully bring suit against people? My assumption is because they just have more money. I am asking sincerely, but maybe I am wrong.

So, based on precedent (which is determined by the culture of our own personal and social experiences, which are, in turn, based on the legal system that governs us), people like me have no compunction downloading as we consider it the same as visiting the library or loaning a book/movie/cd to a friend. Obviously this type of loaning is much more high tech, which I presume would be the argument by the industry, but... that's the nature of technology.

If they want to play in the digital media environs then they must be prepared to accept how digital media works. Seems to me that it should not be acceptable for these companies to manipulate the digital media world simply for their own profit. Of course it is natural for them to do so, that is the nature of capitalism, but the legal system also has a responsibility to protect the average consumer from an abusive (debate, of course, on what defines "abusive") industry. The anti-trust laws set a precedent for this. These laws were not meant to specifically deal with this kind of issue, but do set a clear precedent, among many others I presume, of government protecting consumers from businesses that have such a large pool of resources that the average consumer cannot be reasonably expected to mount a defense that would have any chance at success.

From a legal standpoint I realize that my view is wrong, but from a moral standpoint (ignoring, for a moment, the immorality of disobeying the law) I believe the industry has no leg to stand on. Based on precedent it would seem that it is not stealing.

I'm interested in your take on this. Also interested in where you, as a lawyer, think that this is headed. I don't see how the industry can truly think it will win this? Downloading is becoming more practiced by the day. If you are on the legal team for the record companies, looking 15 years down the road, how do you advise the industry?

[fccool]

Essentially you are correct. There's no "moral" difference between listening to a song on a radio, borrowing the same song from the friend or library, listening to the same song on the youtube, or downloading mp3 of the same song from some "piracy" cite.

Calling it "piracy" is somewhat ridiculous double-speak. Piracy paints the image of vicious criminal thieves who break in and pillage the treasure. It's idiotic.

There's certain stipulations that apply to digital content that don't apply to real property. In essence it's like buying a bridge somewhere and calling it yours. It's always been there. You've passed through it thousands of time... only now "it's yours". BUT, you can't sell it. You can only call it "yours" while you look at it over and over , along with 10 million of other people who also call it "theirs". But eventually it belongs to the person who built it. Pretty cool ain't it?

We should really make these property rules more universally available. You know banks would LOVE IT! They build a house and sell it to 5000 people. They can all enjoy it for a couple hours at a time, but the bank will eventually own the property rights.

I do understand the concept of digital production. My middle name is "digital production". Yet, why is it that we think that we absolutely need the 3rd party law enforcement with loose moral undertones to criminalize virtually every single user of media.

[james423]

Perhaps it doesn't have exactly what you would want in the way of music, but the Emusic site sells MP3 files DRM free. And has ever since I first saw the site (eight years ago). Record companies are signing up by the dozen (perhaps not the biggest ones).

www.emusic.com

[Flyboy]

But the problem will be how to convince the growing community of downloaders to start paying for the IP, regardless of who it ethically should belong to. The longer the industry waits, the deeper the hole to climb out of and the more solid the position of the IP pirates.

I'm interested to hear Tom's thoughts.

[fccool]

You are not going to convince people to pay for something that's available for free at every corner. Likewise, the way digital distribution works... is what makes the free availability inevitable.

There are certain things people are willing to pay for. There are certain thing that they will not pay. There are other ways of dealing with this issue.