Staying ethical when the candy store's wide open

To some, downloading a pirated MP3 isn't stealing, because there is no physical thing that is stolen. The flip side is that there isn't much of a distinction between stealing a CD and profiting from a stolen CD. ScOrp weighs in on the controversy.

ScOrp is TechRepublic's first opinion writer. His ideas and suggestions are his own and do not represent those of TechRepublic or CNET Networks.

Let's say that somebody shoveled candy into a bag and left without paying for it, then brought it out onto the street, laid it on a table, and then just walked away. It's there. It doesn't belong to you. It belongs to someone else. You wouldn't be taking it directly from the owner, though; it's already been stolen by a third party, and is there for the taking. What's the harm there?

Well, for one thing, the legal system doesn't make much distinction between stealing goods and profiting from stolen goods. Supporting criminal activity is itself a crime. For another thing, by filling a consumer need outside of legal channels, you deprive the producer of sales. If you want something and get it without buying it, neither the producer nor the distribution structure gets paid for their efforts.

Down to specifics. Say you want a CD—"My Leather Pants" by BoyBand, Inc. You have two choices. You can go to a store and buy it, or go to your favorite pirating site and download it piece-by-piece for free. In the first case, you're handing over cash, which dribbles back to the artists through the distribution chain and supports past, present, and future efforts of everyone concerned. In the other case, that cash does not go out. In fact, outside of endless popup cascades that some Webmasters still believe in as "ad revenue," there seems to be no one actually profiting, but that's beside the point.

The point is that "something" was produced by people and distributed by people with fair hopes of some funds in return. Dishonest, illegal action by others thwarted the realization of that return.

Taken to an extreme, every music CD produced needs only to sell ONE copy retail for everyone to have it (or a copy of it) and $14.95 would barely buy the cable from the guitar to the amp, let alone everything else it takes to produce that CD and put it in a store.

What's being stolen? In theory, nothing. Downloading a pirated MP3 steals nothing physical; it merely reorganizes a broken spiral trail of tiny magnetic particles on a hard drive platter. But that won't wash. It takes brains, money, and effort to produce that music in the first place, and more yet to put it into reproducible and transportable form. That's a large investment made in the reasonable expectation of payback—if that payback doesn't happen, future investment won't be made. After all, why should it be?

In a way, the future is being stolen.

Piracy is loaning on a grand scale
People have always "swapped media." Small circles of friends have always loaned each other their own books, music, movies, and such. That practice has even been institutionalized in public libraries. As new forms of more easily reproducible media have appeared, though, copyright laws have faced legal challenges more and more, with copyright holders being forced by practicality to accept a certain "little white lie" level of casual piracy. It became legal to make a "backup copy for personal use," in full knowledge that many of these would become "loaner" copies.

To a certain extent, of course, that's good for business. It amounts to word-of-mouth advertising and a free sample program at no direct cost—the short-term losses in sales get replaced and then some. People are always going to want their own copies of works to read or listen to or watch at their own leisure. From the loan of a book, album, or movie, people become exposed to authors, artists, and actors, and are then motivated to make their own purchases.

Enter the Internet, where that loaning circle of friends is now the entire world. Is that a threat to intellectual property rights, or the biggest, best "hands-off" marketing scheme ever?

Well, we know what the Recording Industry Association of America (RIAA) thought of Napster.

The whole Napster story is one of the biggest botches ever, on both sides. The Napster Corp. never made a dime, and how they were ever going to is not clear. A previously rather popular band lost friends in droves, and the RIAA became a new four-letter word. And STILL nothing got solved. (By the way, just in case you were one of those partaking in Napster or other P2P activities, you might check out the Electronic Frontier Foundation’s Subpoena Database Query Tool to see if you have some explaining to do.) You can't help but feel that with a little cooperation from all sides, a bit more business sense over emotions, and less standing on questionable principles, something interesting and good for all concerned may have happened.

Instead, they all decided that this was the hill to die on, and so they all died, or withstood severe damage. That's something of a shame, because it put a big crimp in the budding business model of pay-per-download. At the very least, the whole thing should stand as an excellent example of how NOT to do things in the future.

But if you want an example of that, look to Sen. Orrin Hatch (R-Utah). Not only is he the chairman of the Senate Judiciary Committee, but he is also a songwriter. Last June, he made the statement in a hearing on copyright abuse that technology should be developed to destroy remotely the computers of those who download illegal copies of protected material. Sounds harsh. Almost instantly the Senator and crew had to qualify that statement as more of a rhetorical warning than actual proposed legislation, but the real embarrassment followed when the Senator's own Web site was found to be using JavaScript-based menu software with complete and total blithe disregard for the author's licensing requirements.

Bigger problems at hand
The real danger is that bad legislation may be made as a result. Not that there's any serious thought (yet!) being put into legalizing some HDD-destroying virus as a tool for copyright protection, but there is the Trusting Computing Platform Alliance (TCPA), which, if you'll notice, amounts to much the same thing, and it IS on its way to becoming legal.

The TCPA even promotes the idea that you won’t be able to install Linux, in nearly all its presently existing flavors, on computers manufactured after a certain date? That's a little more worrisome to me than Napster and other P2P networks getting shut down. It's ironic that after a decade of being falsely accused of "monopoly" (in a free market, a true monopoly cannot exist), Microsoft (and others) are now on the verge of a true monopoly—one supported by force of law—and this is seen by many as a good thing.

This just can't be the right reaction.

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