Several times in the last week or so, I’ve found myself either talking about, or listening to someone talk about intellectual property. Then it came up twice in discussions about Web 2.0 via Mark over at Kaedrin and V. IP law is pretty complicated, and I’ve found that people have a pretty wide range of thoughts on the subject. Never one to shy away from a potentially intense discussion (and, in fact, more likely to shove my nose right in), I figured I may as well start a ball rolling.

IP is a big topic, so- like most of my posts- this will probably meander a bit. Today I’m going to discuss IP as it relates to downloading music. I have a few other issues about IP I want to talk about, too, but it’s all too big for one entry. I’ll be talking about IP ownership, next, though. Exciting, yeah?

As far as this discussion goes, it’s probably important to understand what IP is. IP law covers the rights and responsibilities with regards to ideas, as opposed to physical things (thus, intellectual. The difference is easily illustrated. A car is a thing. When you purchase a car, you take ownership of it. If someone damages the car, you have certain rights to seek compensation. It’s easy to see how there is some overlap. Take a book. If you purchase a book from the store, you own the physical book, and you may have rights in regards to someone, say, stealing it. You do not, however, own the story or the characters or the ideas in the book. The physical book is your property. The story or the information in the book is intellectual property. The author (in most cases) holds rights over the IP. That’s why you can’t buy a book, print a dozen copies of it and sell them for profit. Basically.

IP is present in just about everything- patents on designs, product logos, music, stories and characters in movies/books/video games/comics, etc, etc. There are even IP laws that apply to things like business processes or trade secrets.

Of course, most of us are aware of this. Increased access to the web created a problem. In the past, IP infringement involved physical piracy. Physical piracy is a problem, but one that is, to some degree, managable. Sure, you might have small groups of people making cassette copies of an album for a friend, or you might find a company in some developing country making knock-off versions of popular movies or games, but the web changed things. While there were a number of other sites that contributed to the change, the bulk of the blame or fame is usually placed at the feet of one site.

Napster.

I’m not going to waste my time explaning what Napster was. If you’re reading this, you’re on the web. If you’re on the web and you don’t know what Napster is, you’ve probably been living in a cave or under a rock, and, really, I wouldn’t know how to deal with you anyway.

Music piracy is a pretty interesting topic, and it seems like a pretty good place to start a discussion about IP. It’s hardly controversial to say that most of us at least know someone who’s downloaded music. If you attended college any time in the last, say, 7 years, you probably downloaded or knew someone who downloaded from Napster or a similar site.

Nobody doubts that this happens. And, really, music is just the most obvious example. Faster connections have made it easy to pirate just about anything you can think of. There are sites devoted to distributing digital copies of comic books. There are sites full of ROMs and emulators for games. Shoot, Google purchased YouTube, a site devoted to collecting and making available videos for free. All of these things are IP issues.

The debate is an intense one, and covers a lot of ground. The most obvious issue is roughly- is it wrong. Is it wrong to download music/games/videos? There are other, quite frankly more interesting, issues, but that’s the popular debate, so it seems like a good place to start.

So, is it wrong?

A lot of the debate focuses on the theft or piracy of IP. When you download music, the argument goes, you’re stealing from the owner of the IP. The artist, label… whomever.

The two sides of the debate rely on very different philosophical readings of what, exactly, counts as theft. The problem, I think, is that neither side likes to explicitly state their starting point. They get hung up on a semantic debate, when what they’re realling saying is “I have a fundamentally different view of what theft is than you do.”

Here’s how I see the debate- and correct me if I’m wrong.

One side is claiming that downloading is theft because the downloader is taking property without permission. Basically, they argue that it’s theft because the downloader is benefiting without paying. That’s the important part, to them. That someone is benefiting without paying, or without permission. They argue that IP isn’t very different from any other kind of property, and that just because you want it doesn’t mean you have a right to it. It’s about the owner’s right to control who benefits from their IP.

The other side, though, doesn’t care about benefits. They care about harm. When you steal a car, you harm someone- you’re cutting off access to their property. The harm may be minimal, but it’s there. They owned something, and you took it, which means they no longer have it. IP isn’t like that, though. If you download a song, where is the harm to the owner? If you had no intention of purchasing the song in the first place, then you’re not harming the owner. You weren’t going to give the owner any money anyway, so there isn’t a loss in money. And, since you didn’t take a physical thing, there’s no harm there, either.

That’s a pretty important difference in perspectives. Harm versus benefit.

For some reason, nobody seems to mention that distinction, even though it’s clearly the reason why nobody can come to an agreement, and it’s the reason why the two sides come to radically different conclusions on the morallity of downloading music.

This is why, when one side says something like “Well, downloading music is wrong because you don’t have a right to the music” the other side says “so what?” It doesn’t matter if you have a right to the music, if your concern is only whether downloading results in harm. If you haven’t harmed the person, the response goes, then what right do they have to restrict your actions?

There are lots of questions about how to deal with IP. Personally, I’m still working my way through these things.

For example: “Nobody has a right to music.”

What does that really mean? That’s a view I’d have agreed with not that long ago. On some level, it seems pretty obvious. If an artist makes a piece of music, she should benefit from that. She should have the right to control what happens with that music, and should see the profits from that music. Just because I want to listen to it… do I have some kind of right to do so? The answer seems to be no, to me. If I have a right to listen to the music whenever I want, then other people have an obligation to permit me to do so. I’m not sure how that would work, though. And it would seem like a right like that would conflict with an artist’s right to control her work.

Of course, the counterargument is compelling… “I’m not hurting anyone by downloading, because I wouldn’t have bought the cd anyway.”

On that view, one could even conceed “You’re right, I don’t have a right to the music. So what? Regardless of that, I haven’t hurt the IP owner, because I wouldn’t have bought the music anyway.” Of course, the IP owner’s argument is that you profit from downloading. You profit by your enjoyment.

My perspective on this is complicated. As a person who draws, I’m not completely comfortable with the idea that my drawings could be ripped off and I’d have no control over it, and see no profits. As a person with friends in the video game industry, I want to see people purchase games, not steal them. On the other hand, I’ve certainly seen my share of downloaded music files. I’ve watched some of my favorite tv shows from downloaded files. I’ve even purchased DVD versions of shows after watching them online.

It’s complicated, for sure.

So, I’d love to hear some opinions- I know it’s a big issue, and I’ve hardly done justice to it. Consider it a personal favor- you’d be helping me parse this all out and come towards some kind of conclusion.

This entry was posted on Tuesday, February 13th, 2007 at 11:28 am and is filed under music, pop culture. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.