Discussion: Is It Wrong To Share Copyrighted Music? Pt.1

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File sharing: equivalent to defecating in the helmet of a policeman you murdered.

I spoke with my good friend, musician and philosopher Toby Coe, who argues that we should not download or share music without the copyright holder’s permission.

Peter Hardy (PH): So would you contend that file sharing is wrong because it is stealing?

Toby Coe (TC): Partly, but the obvious caveat is that unlike traditional examples of stealing, the victim is not actually denied the right to their property as an object, but rather as a means of receiving remuneration for their labour. It could also be formulated as a problem of free riding [the cost of production is not shared along with the music itself, so those responsible for producing it are treated as ‘suckers’, the listener is exploiting them].

PH: So the syllogism ‘stealing is wrong, sharing music is stealing, therefore sharing music is wrong’ would be a straw man of the anti-file sharing argument?

TC: Yes that would be too simplistic; obviously one is not taking something away, but duplicating it. This is what distinguishes intellectual property theft from the theft of an object.

PH: What do you see as the moral significance of intellectual property rights?

TC: In the case of intellectual property, whoever owns it (because of course the artist could transfer them to a record label, big company, or whoever you want to insert into your corporate tick box) has the right to compensation for the labour that has gone into producing the music. It’s up to them what they do with their own material, it is not up to the Pirate Bay, for example, to decide.

PH: OK, this could get quite complex now that property, the transferability of rights, desert, and autonomy are all ‘in play’. These concepts may well be contested, but although I haven’t considered the line of argument you are making before, at least in its essence it follows from my intuitions. In this area of philosophy I have predominantly Marxian tendencies, and to simplify the view I had before we started (to the point of caricature), I would have said that intellectual property cannot be stolen because there aren’t such things as intellectual property rights.

TC: Because they’re just a social construct?

PH: Yes, but as we’ve said, the opponent of file sharing shouldn’t rely on the argument that it is stealing. Moreover, it’s by grounding your objection elsewhere that you’ve appealed to that same family of intuitions, explicating this as an issue of worker’s rights, of receiving the fruits of one’s labour- a fundamental tenet of the Marxian outlook. One could call this protection of the worker a positive aspect which contrasts with the negative aspect of criticising capitalism.

TC: Well, the absence of intellectual property rights would make sense under a communist reality where everyone was provided for, while in our reality artists need income from their art in order to really work as artists. That is, rather than their art being a side project from their day job. But there needs to be a mechanism to protect against art being used in a way that is against the wishes of the artist, even if this need not include remuneration (as in the example of communism). For instance, you wouldn’t want your songs used as part of the campaign of the Communist Party candidate you didn’t support. But in our capitalist system to deny someone a livelihood from the work they’re doing is morally suspicious.

PH: Well it seems to me a good thing that ‘Ludwig van’ had no say over the use of his music in A Clockwork Orange, but let’s leave that aside.

In a capitalist society such as our own if artists need remuneration for their work in order to subsist as artists, could one not respond that them not getting enough is ‘tough luck’ and they shouldn’t have chosen that career?

TC: Because they were aware, making that choice that it was an unreliable way to make a living?

PH: Yes. By analogy, I could decide pursue any old goal as my career, trying to break some random world record like being able to drink the most Reggae Reggae Sauce or growing the longest beard. And I could put as much time and effort into my favoured endeavour as the average worker bee does into their office job. But just because it choose something as what I want to do with my life it doesn’t mean I’m entitled to make a living out of it.

TC: If we stick to your beard, an artistic product is much more valuable than you just arbitrarily picking something.

PH: Me picking my beard? :p Ok, so we’ll suppose for the sake of argument that beauty is an objective value and that some music is beautiful.

TC: Yes. And there is at least the economic possibility of it- people do live as artists, it’s a tried and tested formula. And the only reason it doesn’t work is because of the behaviour of a large peer group, and in fact, surprisingly even given all the file sharing most self described artists do just about make a living.

PH: Not in the sense of celebrity success, but they are able to have reasonably fulfilled lives as members of society.

TC: It really affects, not the people who have already completed that greasy pole race and have made it into popular consciousness, but those who are just starting out. Who may be on to something good artistically, but their career is sabotaged by their not having the ability to make enough money. There are lots of ways to make money from music other than selling it, there’s live performance, and pieces being licensed for TV, film, etc., and then sampling and sound libraries. But the lower down the ladder of success an artist is the less access they have to making money through these whereas people like Beyonce or Radiohead have lots of choice.

PH: You really have profaned music through your juxtaposition of those two.

TC: The reason it affects people at the bottom worse is that there is now a culture where music is expected for free, so the artists have to put in a lot of work but the possibility of it paying back is even further down the road than it used to be. It used to be that if you were reasonably competent as a musician you could get paid by a club, but now, as far as I’m aware of the scene in the UK, that is often treated like an unpaid internship where you have to do it for nothing even though you’re making the venue money. And this file sharing culture is partly responsible for this worse environment.

Not that file sharing is necessarily against the artist, the classic example is that Metallica became well known through the distribution of copied cassette tapes.

PH: And then later they faced accusations of hypocrisy for suing Napster and it’s users.

TC: Yes. So it’s not any individual case -sharing a song that should have cost $1- that is hurting artists it’s the the normalisation of that act as routine that does so by fostering culture of music being expected for free. This culture erodes the size of the industry meaning that there is less paid work going around than there would have been.

Another factor is that if you can get 10,000 years worth of music without hassle or the financial limitation of having to pay for it, then you’ll be disincentivised from going to see live performances because you could be better off discovering new high quality music for free.

PH: That last point seems wrong because that one can get music for free so readily is an incentive to go and see bands for the reasons that one has more money available to spend on tickets and that one has got into more bands that they’d want to see. And then with lots of bands you want to see rather than the odd one or two you end up going to festivals where you discover more bands and the amount of artists you follow snowballs. In that sense it is good for the industry. I don’t deny that it makes live performance a less cost effective way to enjoy music, but on the other hand I would have thought that as many people who are demotivated by that thought are motivated by the thought that they ought to go and see a band when they are on tour as they owe them for having listened to their music for free.

TC: Well you can’t do that if they never tour in your area.

PH: A fair point.

TC: And of course these are psychological speculations that it wouldn’t be practical to test empirically.

PH: I concede that.

TC: Ultimately, what this means is that musicians are now working harder to tour for a greater proportion of the time, and that even among the pretty big bands there is ridiculous competition for the festival spots. Live shows plus album is a much more viable business model than just live shows. As a commodity live shows are non-scalable meaning there is a limit to how many you could do, whereas -especially given the infrastructure for legal downloads- there is no limit to how much music you could sell.

PH: That’s a very good point. I would like to refine the ‘beard argument’ from before to emphasise that it is socially necessary to have musicians and so they should be remunerated, but the amount of career musicians there should be is not fixed. Just because the number of musicians at T2 is fewer than at T1 does not mean that the situation at T2 is less just. Industries grow and shrink all the time, especially where they are sensitive to technological change. There will always be some artists who are unable to get by in the long term because they are just not good enough, and when that level of ‘good enough’ raises, aren’t those people at the bottom responsible for their choice of an industry like this? Anyway, should we be moving on to another angle?

TC: First, to clarify, I don’t claim that fostering this culture we’ve talked about is what makes file sharing wrong. [So it’s not like Kant’s categorical imperative and the moral status of the act is derived from the ability to universalise it.] I’m saying that it is a consequence of file sharing that needs to be considered alongside whether or not a given act of sharing is wrong for other reasons.

I suppose file sharing has also done some good for the industry in that it has streamlined it, forcing out inefficient practices and roles. A&R execs billing loads of hours for talking on the phone for hours without achieving anything, and crap like that. But then I also have this unprovable hunch that it’s because the executives need to be very sure that any artists they sign really will make them money that we have so much awful manufactured pop music today. This urge for commodification kills off the spirit of art. So in another sense, we end up with more crap and less exciting progressive things.

PH: So that’s another argument against file sharing, but one based on aesthetic value rather than moral value?

TC: Essentially, yes.

PH: And the greater ingenuity required to ‘make it’ now doesn’t result in greater aesthetic value because the extra work needed takes time away from the process of composition?

TC: Yes

~~~~~~~~~

Part 2 includes: information as part of the commons, art as discovered rather than created, and entitlement to aesthetic enjoyment from the perspective of social justice.

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