- The Downloading Debates -

The latest technology topic to make it into the mainstream press is illegal downloading, particularly the illegal downloading of music.  The music industry, most typically represented by the Recording Industry Association of America (now of lawsuit-filing fame), claims they're losing millions of dollars in sales because people have illegally downloaded (and uploaded) the copyrighted works of their clients, the musicians, rather than purchasing their songs on CD.

The Base Case

Most of the argument centers around the "Base Case."  By this, I mean the music fan with

The "Base Case" receives the most focus because the harm to the record company is clear.

disposable income who wants a CD, but decides to download it from a peer-to-peer network like Kazaa rather than purchasing it from a legitimate vendor.  This case receives the most focus because the harm to the record company is clear; the music fan has a copy of the music but did not pay for it.  If downloading were not an option, he/she would likely have walked into a record store and bought the CD, so the record company is out the $16 they would have collected from the purchase.  If this continues, the record companies' profits will fall, and in an effort to maintain those profits, they will pay the artists who create the music less money.  Eventually, talented musicians will go on to become accountants and web site designers, content with entertaining their friends at parties rather than live the meager, "starving artist" existence of a professional musician.  The music industry collapses and we are a poorer society for its loss.  Without music, peace and harmony vanish, the sun grows dark, and disease and pestilence envelop the land.  We revert back to a barbarian society where men clonk women over the head with clubs and take them back to live in their caves, and . . . well, you get the idea.

The Questions

I read about the Base Case with a mixture of sympathy and amusement, since a) I understand and, for the most part, agree with the record companies' position on the problem,  and b) have no desire to spend a half hour downloading a CD just to rook some company out of $16.  What are more interesting to me are the subtle variations on the Base Case that no one ever talks about.  I've listed seven that come to mind below.  In these cases, I waver somewhere between downloading the music and feeling funny about it to downloading the music with complete (and potentially misplaced) confidence that I'm not doing anything wrong.

Variation Case #1:  I already own the album
Let's say I legitimately purchased a CD several years ago.  I still have the disc and it's still in good working order.  I can, any time I wish, pop it into my stereo and listen to the music free of charge.  But now I own a CD-R burner, and wish to make a "mix" CD to take on car trips or whatever.  Does the fact that I already paid for the music entitle me to download the song and burn it on CD?  Is it any different than "ripping" the song off of my CD and burning it onto another one?  What exactly was I buying when I got my CD?  Was it the physical object or was it a "use license" for the material on it?

Variation Case #2:  The music is no longer commercially available
A while back I was looking for the soundtrack from one of the old Muppet movies (no, I don't remember why, but that's not the point).  Extensive searching revealed while some of the Muppet movie soundtracks are still for sale, others have been discontinued (likely due to lack of demand).  Now, let's say I find a kind-hearted delinquent music fan who has posted this copyrighted material on the internet for all to hear.  Can I legitimately download it and burn it onto a CD?  I realize I'm not paying for the material, but then again, my only other recourse is not to have it, and downloading it doesn't seem to be costing anybody any money.

Variation Case #3:  Live recordings or recordings of free TV & public radio
Let's say an artist gives a free concert in Central Park, and someone records it & posts it on the internet.  Alternatively, let's say an artist goes on TV or on the radio and performs a song, and someone makes an audio recording of the appearance and posts it.  Are these permissible downloads?  I was obviously allowed to listen to the performance for free the first time.  Does that mean I can listen to it as often as I like?  Is there a difference between downloading a tape of the song and recording it myself?

Variation Case #4:  I'm sampling the music before I buy it
Let's say I download a couple of songs from a new CD to see if I like the music.  If I do, I buy the CD in a record store.  If I don't, I delete the tracks from my hard drive.  Are the downloads still illegal? I realize it's impossible to prove my intent at the time of the download, but if the RIAA found out I had downloaded 10,000 songs over a period of time and deleted every last one of them after deciding whether or not to buy the album, could they still recoup damages from me?

Variation Case #5:  I have no intention of ever buying the music
Let's say someone posts a large collection of obscure folk music on the web.  Let's also assume for a minute that I have absolutely no interest in folk music.  Nonetheless, I come across one song in the bunch that I think is alright, and wouldn't mind hearing again.  However, it's intrinsic value to me is less than a penny.  In other words, if asked to pay anything for it at all, I would pass on it without a second thought.  Can I download it?  Doing so wouldn't create a financial loss for the record company, since a) they're not getting any money from me whether I download it or not, and b) music is not like candy bars - if I steal a candy bar from the grocery store and eat it, the grocery store has one less candy bar to sell.  There's a financial loss to the store, even if I would have passed on the purchase if forced to make it.  Music on the other hand, is eternally reproducible.  My download of the song doesn't reduce the number of CD's the record company has to sell, it doesn't increase their expenses at all, nor does it detract from the resources, shelf space, distribution networks, etc. that are required to sell the CD's.  In short, I'm doing them no harm.

Variation Case #6:  I can't afford to buy the music
This is a variation on #5 above, but let's say I have no disposable income.  All of my money goes to food and clothing, and I am completely unable to spend on luxuries like CD's.  A charitable friend gives me an old CD player and I'd like to have some CD's to play on it.  As in #5 above, without downloading the music for free, I would simply do without it, so I'm not causing anyone financial harm.  Does this somehow mitigate the crime?

Variation Case #7:  My downloading generates legitimate sales for the CD
Let's say I'm a college student who runs a DJ business on the side.  I'm just starting out and don't want to make the huge investment required to develop a music selection, so I download hundreds of relatively obscure songs from the internet and burn party CD's to play when I'm hired.  By playing the music at parties, the students become fans of certain songs or groups, and then go to legitimate record stores and buy the CD's.  In this case, my downloading a particular song has actually increased revenue for the record company.  Still illegal?

Conclusions

Regardless of the answers to all of the above questions, I can understand why the RIAA has adopted an "all downloading is horrible" position, both in the press and in court.  The danger of exploring detailed, variation scenarios includes both harmful legal precedent and a diluted message to the public.  That being said, I'm guessing that the seven variations above (along with the seventy-seven I've neglected to mention) are enough to fill a semester long course in law school, along with dozens of legal dockets around the country.

If nothing else, I think this suggests that the RIAA's case may be a bit overstated.  I don't believe that the drop in record company revenues in the past year is entirely due to illegal downloading (perhaps the music was just awful that year?), nor do I believe that every song downloaded from the internet represents a financial loss to the record companies.  Those that do signify the need for bold new thought in the area of copyright protection law and technological development, but they also signify a fundamental shift in the music industry. 

Diluted record company profits will not spell the end of highly creative, highly successful musical artists.  Cream rises to the top.  To date, the path of least resistance for a talented musician has been a record company.  In the future, if record companies don't treat their artists well, another path will present itself.  Perhaps electronic, "direct-to-consumer" distribution is that path.  If it is, record companies can either chose to embrace it (as banks, book sellers, and airlines did when "dot com" was on the front page of every newspaper), or they can fight it.

If they fight it, I believe they will lose.