Jim writes on:
P2P File Sharing
A friend sent me a link to a discussion group about the legalities of file sharing. Here are some of my thoughts on the matter.
June 19, 2005 - Thanks for the link. I haven't been to VoxTalk before.
They cover a lot of the same ground that most of these discussions follow. For me most of the posters miss a couple of points about what is legal and what is not.
1. Intellectual Property (IP) protection was written into law as a way of encouraging innovation. Since innovation is considered to be in the public good, the public is willing to provide individuals some protection of the intellectual property (so that they can make money off of it), thus removing it from the ownership by the common. It is hoped that in return for this protection the public will receive more innovation that they might otherwise enjoy.
2. Since IP protection is a legal artifact, it is not "moral" or "ethical", it just "is". The moral or ethical dilemma is whether you decide to follow the law or not. The discussion is also often around how immoral or unethical is it to violate the copyright laws. Is it similar to going 30 miles per hour in a 25 mph zone? Or is it more like stealing bottles of wine out of the back of your local liquor store? Or is it grand theft auto. These are personal decisions to be made.
3. Since this is a complex legal area, and few posters read the law, they make assertions that are not true. For example, "if I buy the CD, then I own the whole thing and if I choose to make copies of the audio...", etc. The fact is that copyright protection is a legal concept and the law says you don't own the right to make copies of the audio except in some very specific circumstances. Period. There is not a "right to ownership", etc. In fact, "ownership" itself, even of physical property like an automobile, exists because the law says it does. In some societies today (I think the Kalahari bushmen?) and in medieval times the common person didn't "own" anything. Ownership started when the laws starting embodying the concept.
4. A lot of people try to gauge the weight of the moral decision of downloading audio by analogy to other situations. Often the try to compare downloading to stealing bread or another physical object. I see few people try an analogy to stealing written works. Why not have all of Stephen King's novels available for free download? Why not allow all software to be freely downloaded without payment? In these arguments I try to find something that the person on the other side has created and then discuss making it available for free. This line of reasoning doesn't work with a person who has no IP themselves, like a college student. It works pretty well with software professionals, musicians, and visual artists.
5. Much of the confusion in the whole area occurs because existing laws were based on the technology available at the time they were written, and perhaps an insightful view of the near future. P2P sharing over the internet has changed the playing field dramatically. Because of this, the old laws don't address some of the new concepts very well. The law needs to catch up, but the law - thank God - moves slowly. In the mean time everyone discusses the issues on bulletin boards. Working to improve the law is a noble pursuit. (But it can take time away from downloading...)
6. Businesses structure themselves around existing laws (and the periphery of those laws). Many fortunes are made through these businesses. When the fundamentals of the market change, they often respond badly. This is particularly true when the businesses enjoyed a monopoly or oligopoly. These kinds of businesses become entrenched in their processes. They become filled with un-insightful people. They become run by lawyers. When people begin to massively disregard some law that has been used to make these fortunes they just do kooky things - like suing all their customers.
My view of the end of the run? Unfortunately, the industry will sue all kinds of P2P users. They will make big headlines. The new, fully encrypted, P2P networks become ubiquitous and the existing music industry loses all control and any ability to regain it. Fully encrypted P2P has languished because the encryption/decryption process takes CPU time and makes the traded files a bit larger. Desktop CPU speed had removed the former condition and fat pipes have removed the latter.
Unless the record industry changes its position on P2P immediately, the entire community will become cloaked in simple, easy to use, impossible to break encryption. The record industry will lose big time.
November 11, 2005 - It seems my picture of the future needs to change some, because it looks like the music industry is changing. Since I wrote the email above two things have given me reason to hope that the future will not be so bleak.
First, there is a new deal out there keeping P2P alive. The record industry in the U.S. has signed a deal with one of the P2P vendors. The vendor is iMesh. They have announced a rebirth as a legal P2P network. It has been reported that iMesh will filter songs out of their network if the copyright holder wants them to. In return, the record industry is letting iMesh sell legal downloads from MusicNet. This is a very big deal. If you believe that P2P has legitimate uses, then this is good news. This opens up the possibility of other P2P vendors striking deals to work within the system. If the vendors can make a legal buck, there's no reason to encrypt the network.
Second, a new model is being tested in the U.K. PlayLouder has announced that they will be both an ISP and a music seller. But rather than deliver music files directly, they will collect a monthly fee from their users for all the music they want to consume. The users can use any P2P software to download the music they want. PlayLouder will monitor how often each song is traded and then divide the collected fees up between the owners of the songs. This is incredible. So far only forward thinking Sony has announced signing up for this deal (read: we won't sue you for this) but others will follow. Again, why hide if your business is legal?
Maybe the record industry will dodge the bullet.