In Part 2, I detailed the ambiguity regarding the licensing of digital media, citing the user’s difficulty in discerning what is legal. As per that vein, last week, Nine Inch Nails released its newest album on bitTorrent as well as available to listen on their site.
This is a particularly central tennet to the debate regarding music downloads, as their are more outlets to capture and distribute music than any other medium.
There are five key points to address when determining the ethical ramifications of downloading music on the Internet:
-Who released it, and what license
-Honus of knowledge
Who released it is very important, perhaps on an ethical level, more than with what license. The licenses are not written by the artists and are not really with the intent of protecting the artist, but rather the recording label. If the album is released freely by the artist, it is irrelevant ethically whether the “license” permits listening on an MP3 playing or using it in a personal video. Perhaps I’m speaking out of line, but I’d find it hard to imagine that anyone releasing their music would be the ones to impose those restrictions.
But in terms of license, the transferrence of license must be permitted in some way with all possessions, or else it’s not a possession at all, and you’re no longer buying, but leasing. Assuming that you are not leasing music, but purchasing, someone then must have purchased the song that is available on peer-to-peer, and must thereby by transferrable. It is the user’s right to give away HIS license to that song. This leads into the next section…
The honus of knowledge. Is the user then the one who should be required to determine whether a download available for free from wherever is in fact licensed as such? In terms of the analogy of someone giving away a song, would the user downloading be required then to assure that the user on the other end, who has just released his license, no longer listen to the song? Is it up to the user, if he does not know who a band is, to find out whether he would, would not or has released an album for free? If he is unable, is it then unethical to download? For most independents, this would be severely limiting, from a theoretical absolute position if everyone followed this rule.
The most convincing argument against the freedom of users to download based on the conception of presumed licensing is that the initiation of a download has the user copying the material, and not the licensee, as well as it being a copy, and not a transfer. However, this may become irrelevant once we address the question of whose law is it that one must follow? The residence of the user or that of the artist, if any at all? While one would naturally lean toward that of the user, it then must be asked how this protects the artist? If copyright protection is provided to protect the rights of the original creator, who then does it serve to ignore the laws by which that creator lives?
Even further on the law of the Internet, let’s try an example: An American artist records an album (and doesn’t release it freely on the Internet), then moves to Canada. A person in Canada and a different person in the United States downloads the same album. Do we apply the American law to both, Canadian to the Canadian, US to the US? American law cannot be applied to a Canadian if the act was perpetrated on Canadian soil (and vice-versa). Canadian law does not protect the artist in this case. Applying American law would be irreverent when the person in the same country as the artist is not subject to the same law. The only reasonable conclusion on the application of the law is that attempting to do so can only be considered an act of a party without the artist himself in mind, well intentioned or not.
The industry is created as a means of generating revenue, but offering a service to the public. The artists provide the service, the public pays for it, all is good. If either the customer doesn’t pay, or the service isn’t as advertised, then the system is broken. Also central to the entire idea of paying for a service is competition, and if there’s no competition, the reason to pay dissipates. We are seeing all three signs of a broken industry with music today. Your options for music (aside from our subject of downloads) if you do not own an iPod are CDs. This is a monopoly. Also referenced in Part 2 is the incredible limitations of modern license agreements, which is arguably not as advertised. This is no clearer than the Sony rootkit fiasco in which Sony music CDs automatically installed anti-piracy software without the user’s consent, and resulted in significant performance issues on the system — in lamens terms, it installed malware.
One last issue I’ll touch on is US specific — the Recording Industry Association of America (RIAA). They’ve been on a massive anti-piracy legal crusade, primarily against college dorm students (which is a moronic idea legally given dorm students are on a SHARED network meaning it’s impossible to win if it makes it to court). While there’s a lot of rhetoric in the incessent web-flaming on the RIAA, there are unseemly practices, including one that single-handedly undermines their entire cause: They didn’t pay the artists.
Ok, that was the second-to-last thing. I’d be remisce not to mention that as a listener to a lot of Japanese music, it’s awfully difficult for me to acquire music through traditional means, and I most certainly would not have even heard any of it as such. I have actually looked on iTunes for the sake of seeing if I could find Hitomi Yaida or Younha, and did not have such luck. Importing costs $40 + shipping.
So my judgment? Well, when you have such significant international legal inconsistencies, tonnes of ways to get music that may or may not be properly licensed, and you’ve got companies pulling crap like this this and this, it’s a little hard to feeling as if you’re hurting the little guy by downloading some songs.
Judgment: No objectionability. That’s right, none. Do it, and may your conscience be clear. The industry’s a mess, and it’s not your job to clean it up — wait, sorry, it is. By not buying overpriced, malware infested, CDs that the record label gets 88% of the profits.
Part 4 investigates the seediness of downloading pirated software.