The New York Times Upfront asked me to contribute a short piece to a point/counterpoint they were having on downloading. (I would defend downloading, of course.) I thought I managed to write a pretty good piece, especially for its size and audience, in a couple days. But then I found out my piece was cut because the Times had decided not to tell kids to break the law. So, from the graveyard, here it is.

Stealing is wrong. But downloading isn’t stealing. If I shoplift an album from my local record store, no one else can buy it. But when I download a song, no one loses it and another person gets it. There’s no ethical problem.

Music companies blame a fifteen percent drop in sales since 2000 on downloading. But over the same period, there was a recession, a price hike, a 25% cut in new releases, and a lack of popular new artists. Factoring all that in, maybe downloading increases sales. And 90% of the catalog of the major labels isn’t for sale anymore. The Internet is the only way to hear this music.

Even if downloading did hurt sales, that doesn’t make it unethical. Libraries and video stores (neither of which pay per rental) hurt sales too. Is it unethical to use them?

Downloading may be illegal. But 60 million people used Napster and only 50 million voted for Bush or Gore. We live in a democracy. If the people want to share files then the law should be changed to let them.

And there’s a fair way to change it. A Harvard professor found that a $60/yr. charge for broadband users would make up for all lost revenues. The government would give it to the affected artists and, in return, make downloading legal, sparking easier-to-use systems and more shared music. The artists get more money and you get more music. What’s unethical about that?


“a fifteen percent drop in sales since 2000”: This is from the RIAA’s own chart. In 1999, they sold 938.9M CDs, in 2002 they sold 803.3M. (938.9-803.3)/938.9 ~= .14 (so it’s really closer to 14%, but we’ll give them the benefit of the doubt and say 15%).

“a 25% cut in new releases”: It depends on how you count. The RIAA says they released 38,900 new releases in 1999. According to SoundScan the RIAA released 31,734 new releases in 2001, leading to an 18% drop. This isn’t really fair, since we’re using RIAA numbers for 1999 and SoundScan numbers for 2001, and SoundScan probably doesn’t count as many albums as the RIAA does. However, the RIAA said in early 2003 that they released 27,000 new albums the previously year. Apparently embarassed by this information, they’ve since removed it from their website. But if you use their numbers, you get a 31% drop. I’ve split the difference and called it a 25% cut. But I could change this to 30% or 20% if you wanted; I don’t think it would change the argument.

“90% of the major label’s catalog isn’t available for sale”: speech by Ken Hertz

“60 million people used Napster”: according to the New York Times

“50 million voted for Bush or Gore”: according to CNN

“A Harvard professor found that a $60 per year tax on broadband connections would make up for all lost music and movie sales”: see Terry Fisher, Promises to Keep. “Assuming that the ISPs pass through to consumers the entire amount of the tax, that average fee would rise by $4.88 per month” (p. 31) 4.88*12 ~= 59, so I say $60/yr.

posted January 08, 2004 07:03 PM (Politics) (66 comments) #


Contest: What has Bush done for you?
Plea for Help
Is it moral to plead the Fifth?
Unspeakable Things
Apple’s Secret Strategy: TV for Everyone
Counterpoint: Downloading Isn’t Stealing
Cat in the Hat: Harmful to Minors?
Shorter Paul O’Neill
Jefferson: Nature Wants Information to Be Free
C-SPAN Crossfire
Shorter George Lakoff: The Framing of Politics


So, you’re implying above that if I’m a creator of intellectual property (music, software, etc.), I forfeited the my rights as a creator to say how and where I may choose to distribute my work?

[T]o recognize the GPL (and other licenses) and its enforcability, you must recognize a fundamental right that the creator holds (or held initially and has transferred) to determine and dictate the terms under which the creation may be distributed. If I can’t set the terms […], then [why can’t I say] it’s not unethical to violate the GPL or any sort of open source license? If an artist has no say in how their music is distributed, what rights do coders have?

[Ed. note: I’ve combined Chris Karr’s two comments into one above for clarity.]

posted by Chris Karr at January 8, 2004 09:08 PM #

I don’t think creators forfeited their rights to control distribution — they never had them! There are laws that provide specific penalties for specific acts, let’s not confuse them with some magical scheme of “rights for creators”.

Chris, you’re missing the liberation for the tanks. The GPL is a clever way of protecting freedom using current laws. It would be the worst form of inertia to say we shouldn’t increase people’s freedom because of it!

Furthermore, it’s absurd of you to say that people who merely want to use current laws must not only support the laws themselves or the reasons behind them, but a vast overarching moral scheme that the law doesn’t even agree with. (What kind of fundamental right expires?)

posted by Aaron Swartz at January 8, 2004 10:08 PM #

Interesting that a writer for the NYTimes made the case that downloading increased music buying in his house:

I’m disappointed they spiked your piece.

posted by paul beard at January 8, 2004 10:22 PM #

I believe that a part of the idea is to shake up our basic assumptions about what constitutes as “the rights of the creator” and also how we frame the discussion about online/electronic distribution.

For example, it matters a lot if you look at file-sharing and assume the (conventional) mental model that “music on the Internet is like a bunch of virtual CDs floating about in cyberspace”, or if you instead use the radio/broadcasting metaphor that says “music on the Internet is like having zillions of personalized radio stations” (or having accessing a huge library). Depending on how you frame the issue, different compensation methods and “creator’s rights” start to make sense.

The physical object/CD metaphor calls for copy-protections and pay-per-download schemes, while the library/radio broadcast metaphor allows for compulsory licensing and unlimited distribution.

I don’t know if I’m making much sense (tired, not a native English speaker, etc.) but I think that we must not underestimate how radical Aaron’s ideas are. I think they’re begging us to completely overhaul some of our most basic assumptions about copyright and online distribution.

posted by Már Örlygsson at January 8, 2004 10:26 PM #

(Disclaimer: I use the GPL, but don’t believe that anyone has the right to say that everyone else’s code should be open if the author doesn’t feel the same way though.)

If you’re the type of person who thinks that all intellectual property should be the equivalent of what we call the public domain, then there is no contradiction. You just don’t recognize the right of a creator to have any say about how and to who their creations are distributed to. That is fine, but to be consistent, you should probably recognize that there is nothing unethical about Microsoft taking some open source GPL’ed code and incorporating it into Windows and claiming it as their own since you don’t recognize the rights the creator of the code to dictate the terms of its distribution and use.

posted by Chris Karr at January 8, 2004 10:33 PM #

Dude, I doubt that combining and […]’ing parts of my comments is considered lightly-editing. If you’re interested in having an honest discussion, please leave the authors’ comments as they were posted. I posted nothing that would merit any editing.

posted by Chris Karr at January 8, 2004 10:37 PM #

There are several ways Aaron could avoid being inconsistent. He could believe that it’s not unethical for Microsoft to appropriate GPLed code, but that Microsoft should realize that it can be punished by law for doing so. (Aaron could either be happy or unhappy about that.) Or he could say that it’s unethical to do anything to attempt to create proprietary software. In that case, Microsoft’s appropriation could be condemned not on the ground that it violates the GPL but on the alternative ground that it’s an act in furtherance of the creation of proprietary software.

The “GPL relies on copyright” argument is a strange argument in the sense that the creators of the GPL have always sought a significantly different direction for copyright law. The idea that copyright in its present form is a good thing simply because it permits the GPL (which a lot of the law’s critics admire) is a little strange.

Chris Karr’s theory seems to be that the GPL is about allocating rights between authors and subsequent authors (who are making derivative works). But historically, it was thought of as being about allocating rights between authors and the public.

posted by Seth Schoen at January 9, 2004 01:49 AM #

What you’re basically saying is that intellectual property does not exist and anything anyone creates that can in any way be distributed over the internet or whichever other means outside the direct control of the author is by definition in the public domain.

I think not only musicians and programmers (and their companies) would violently disagree but also authors and publishers in the printed press, including the NYT themselves. If I scan a newspaper into my PC and send it to all my friends as a PDF document I’m violating the law, yet I’m doing nothing different from the person who rips his CD to MP3 files and puts those on the net.

The only difference is that in this instance you’re the victim instead of having the benefits of the crime.

You say you don’t believe in forcing anyone to release his code into the public domain YET you claim that all artists should do just that with their work. Double standards…

posted by Jeroen Wenting at January 9, 2004 07:16 AM #

In fact, I believe (though I could be wrong) that Aaron’s view would be that 1) Microsoft can freely incorporate GPL’ed code BUT 2) It would be ethical for people to freely download the product

Which interestingly, brings us back to the GPL’s intended effect in the first place.

In fairness to Chris Karr, many people don’t understand the GPL logical construction, since it’s an inverted use of restrictions, for freedom.

Like the theological paradox, “Can an all-powerful God make a stone so heavy he can’t lift it”, it’s a paradox of “Can an all-powerful (copyright) God make a (software) creation which nobody can control?”

People who believe in the “SCO” copyright view tend to be extremely confused about about that paradox, almost like the divinity problem of resolving omnipotence and free will.

It’s telling - or maybe not - that the critiques (counting the earlier flame-war) are so copyright-theological. The problem there is that no matter how much the temple priests say it’s a divine revelation, copyright makes for very bad dogma. It simply has too many mundane indulgences to be believable as a holy law.

posted by Seth Finkelstein at January 9, 2004 07:21 AM #

Why should I pay a $60 broadband tax if I have no plans to download or share copyright protected files? Why not make the people who download or share files pay a fee for the right to do so instead?

posted by Doug Miller at January 9, 2004 07:26 AM #

If the NY Times is interested, recast the article with all your wonderfully relevent points.

Change the references that “downloading isn’t stealing” to “Downloading is simply a legitimate method of transfer” and add that the real question to focus on is why the industry has refused to consider alternative royalty payment methods to artists.

What is stealing is a recording company middleman that extorts money by keeping consumers and artists apart.

posted by sbw at January 9, 2004 08:34 AM #

Seth Schoen: The fundamental difference between the GPL and BSD licenses is the viral clause which is very much a restriction on developers’ distribution of derivative works.

Seth Finkelstein: You’ve lost me in your metaphors, but I think you’ve said something important. Can you elaborate or rephrase your point?

Doug Miller: Agreed. Perhaps the $60 broadband tax should be renamed something like a digital media usage fee that is used to fund the development of digital media by the state. (Not unlike the UK’s television tax.) I don’t download music, so why should the state compel me to pay for those who do?

posted by Chris Karr at January 9, 2004 09:01 AM #

Chris Karr: Basically, the pure “creator’s rights” theory of copyright simply isn’t true, as a factual matter. People often assert it, because that’s how they think of it as philosophical matter. But the discussion tends to bog down over this point, since there’s so much emotional energy invested in it. As a matter of law, copyright isn’t a divine right of kings, err, creators. It’s a complicated series of practical trade-offs, which don’t have the rigorous axiomatic intellectual consistency so beloved of both geeks and theologians.

The GPL makes use of the pure “creator’s rights” theory in an interesting way. It isn’t saying the people involved necessarily believe the theory. But to the believers of the theory, it says that the creator exercises their rights by binding all believers not to enforce those rights. It’s as if you went to someone and said you considered them a god, and they replied, “Well, I personally don’t think I’m a god - but if you think I’m a god, my command as your god, to you as a worshiper, is not to think of me as a god, and further, if you discuss me, tell anyone else I’m not a god either.”

This is completely logically consistent. But it tends to discomfort worshipers, who are used to gods telling them restrictive things - what sort of a god is it, who tells them, as a god-command, not to believe in him as a god? Sure, gods can by definition do anything. But that’s some sort of subversion of status. Which is SCO’s (in)famous objection.

An endless repeating of the pure “creator’s rights” theory of copyright doesn’t help philosophically or practically.

posted by Seth Finkelstein at January 9, 2004 09:37 AM #

One note… the United States is not a democracy and never has been, no matter what people like to say in speeches. We’re a limited democratic republic. We elect representatives, and have checks and balances in place to ensure that mob rule is not an option and those with less than 50% of the vote (or 5%) still have the same rights that members of the majority (in whatever issue) do.

posted by JC at January 9, 2004 09:44 AM #

Doug Miller: Why should I pay a $60 broadband tax if I have no plans to download or share copyright protected files?

Because it’s an efficient and fair solution WHEN COMPARED TO THE ALTERNATIVES. Is it fair when measured on some “absolute measure of fairness”? Maybe not. But many of the alternatives end up with a big chunk of money that might have ended up in artists hands going to court and lawyer costs, and they still don’t get any distribution out of it.

More to the point - this system is already in use in the United States, Canada, and many other places. You pay a levy on blank recording materials, and those funds are re-distributed to artists. It doesn’t matter what, if anything, you record on that media. The only reason that CD-Rs and CD-RWs are covered in the U.S. is that the levy setting process (which is likely just an administrative function) hasn’t been run recently.

posted by Chris at January 9, 2004 09:56 AM #

The article starts with a straw man argument and then simply knocks it down.

“Stealing is wrong. But downloading isn’t stealing. If I shoplift an album from my local record store, no one else can buy it. But when I download a song, no one loses it and another person gets it. There’s no ethical problem.”

It equates downloading and stealing, by saying downloading isn’t stealing you equate a broad action with a very specific one. You then knock down how downloading isn’t stealing. You then use that straw man argument as the basis for your entire argument that there’s no ethical problem with downloading copyrighted content.

I also have a friend that worked in a video rental business and most rentals have a kick back of around 1 dollar to the movie studios. Remmeber it wasn’t that long ago when it was just a rental market and movies cost anywhere from 80 to 100 dollars. Rental chains would get a huge discount but part of the rental fee would go back to the studio.

Anf the GPL can not be about freedom since it binds, enslaves, people to follow it. The very opposite of freedom if you ask me.

Final Word: I can see why this article was dropped. It’s poorly written and poorly thought out.

posted by James at January 9, 2004 10:09 AM #

Thanks for the clarification. I had not seen anyone do such a direct comparison between licensing and religious dogma. Very creative.

You are also correct that there is no “divine” or “natural” right granted to creators. (I’ll avoid the philosophical discussion of whether such rights even exist or are social constructs.) I will agree that it’s a social contract between the state and citizen, where the state agrees to enforce a creator’s right in order provide incentive for the citizen to create. (This not to imply in the least that I think the current setup is even close to being fair or optimal.)

The part of this whole argument that I take issue with is the apparently unquestioned idea that the act of using the GPL is intended to be a clever way of circumventing the current social contract by creatively making things more “public domain”-ish. Now, this is just me as a sample of one, but my use of the GPL in my projects have nothing to do with trying to reform copyright, and is a pragmatic recognition that the GPL was the best fit in this case to protect my work from unauthorized commercial use and promote collaboration. It had nothing to do with overthrowing the current copyright regime. Had another license been better and as well understood, I would have considered adopting that.

Which is all getting off-topic from the parent entry above. Is it fair to summarize the arguments above as saying that downloading music is not unethical if one believes that there is no such thing as intellectual property rights (fundamental or otherwise)? Or am I painting with too broad of a brush here and there is some nuance that I missed?

posted by Chris Karr at January 9, 2004 10:25 AM #

Doug Miller: Why should I pay a $60 broadband tax if I have no plans to download or share copyright protected files?

another way to think of this as well is the instance of hotel rooms… you pay extra for a cable tv room regardless of whether you watch tv. it’s something that comes up front and we as a rule don’t demand compensation for not using.

i’m reminded of the joke about the guy who got a $300 hotel room bill. he asked the manager why and the manager said, “well, you had access to the pool and so on and so on. it is too bad you didn’t take advantage of all over our guest services.” then the man promptly issued the hotel manager a bill for $500 and the manager was confused and asked what it was for. the guy sad, “well, you had access to my wife last night… it is too bad you didn’t take advantage of all her services.”

as funny as the joke might or might not be, i bet the guy didn’t get away with not paying his hotel bill and so on. it’s annoying to not have more ala carte style choices, i know, but would you want a guy hanging out in your hotel room making sure you didn’t use the tv?

i’d rather not have anyone watching what i do online as well. what music/movies i download legally or illegally is my business. $5 a month is a fair cost to play. even if you don’t download much or nearly anything, that’s pretty small. if you can afford $45 or $50 a month for broadband, you can likely afford $5 more.

anyway, what’s the point of broadband if you aren’t downloading large media files? is there that much large software out there? has web-site design gotten that bad such that dialup modem is no longer tolerable for email and web traffic? m.

posted by msp at January 9, 2004 10:40 AM #

msp: The argument makes sense only if individual broadband providers imposed the fee and not the gov’t. For example, as I have a choice of choosing which (m/h)otel I stay in - expensive ones with pools and HBO and cable and all that, or cheap ones with a simple bed, toilet, and sink - I should also have a choice of which ISP to use. By having the gov’t impose a fee of this sort, you would be effectively raising the cost of all users of broadband users. It would be analogous to mandating that hotels must impose a cable fee on their bills because some customers will watch the cable channels. It limits the ability of the hotel to decide whether to offer the service or not, and it forces the consumer to pay for something that they may not even be using. In short, you’re describing a subsidy for media producers.

And if you have problems with the digital divide, what will that $5 increase do to adoption rates in the lower income brackets? The rich can obviously afford it, but what about the “average guy” Aaron is always talking about on this blog that is perpetually poor, hungry, and out of work? An additional $5 charge on his bill may be enough to persuade him to not adopt broadband or other form of access.

And to answer your last question, I primarily use broadband as a means of an always-on connection where I can distribute materials of my own and do things like set up mail servers and the like. I rarely use it to download large media files, and its utility is in pushing traffic out from me, rather than pulling it in.

posted by Chris Karr at January 9, 2004 10:57 AM #

It’s clever of the recording industry to convince you that they’re trying to protect artists’ interests. The proposition of a broadband fee doesn’t give any money to RIAA and they’re the companies that claim they’re hurt by tune sharing.

Maybe the recording industry does spend a lot of money promoting new artists, but the group, TLC, said they sold millions of CDs but the three of them got about $50,000 each for it. Because they signed a “new artist” fleecing deal.

The business model for new artists is to get a hit, then do a tour for money and change labels because an artist who’s got a hit is entitled to a better deal.

In any case, new artists aren’t hurt very much by file sharing - it spreads their work and they weren’t gonna make much from CD distribution anyway.

This issue, interesting as it is, is part of a larger debate on intellectual property. What do you think of pirated copies of CDs - music, software and movies - that are sold in job lots in the far east?

posted by SLS at January 9, 2004 11:43 AM #

Chris Karr argues that because I think that non-commercial copying of music is OK, then I must think that violating the GPL is OK. But the way he comes to that conclusion is instructive.

Chris believes that there is some overarching power for “creator’s rights” that you must either agree with entirely, or not at all. I think this is nonsense — copyright is not an issue of morality but of pragmatism: what’s the minimum we can do to encourage people to write things?

In this article, I’m simply arguing that non-commercial Internet copying of music between individuals should be treated like “fair use” and not be considered immoral. There’s no inconsistency with believing this and believing that commercial sale of derivative works by corporations (e.g. Microsoft violating the GPL) is not fair use. I’m surprised no one considered this — perhaps an absolutist copyright mentality really has taken hold.

posted by Aaron Swartz at January 9, 2004 11:56 AM #

Good piece. We need more intelligent techie kids to explain this stuff to the grown-ups. Ever thought about becoming a tech journalist?

posted by Cyrus J. Farivar at January 9, 2004 12:02 PM #

Hey, let me be clear: I’d love to write articles or explain concepts to members of any news organization for little or no charge.

posted by Aaron Swartz at January 9, 2004 12:13 PM #

Damn, you’re really missing my point here. I’m not arguing about some creators’ rights as I’m arguing about intellectual property rights in general. I’m arguing that there is no substantial difference between music and software that says that we should treat one in one fashion, and the other in another.

Fundamental to any sort of intellectual property rights is the idea that the rights holder can determine the terms if and how they make their content available. (Fair use aside, as I’ll get to this in a minute.) Unless you can give a compelling reason why software should be treated differently than music (as Mar attempted to do above, but the comment has since been erased because it is “irrelevant” or something), you can not say that we should respect a programmer who distributes his work under the GPL and not respect the artist (or music company) who releases a piece of music under a standard no-redistribution basis.

Now, fair use (and first sale) is the exception to all this that keeps copyright holders from being overly unreasonable. However, to claim that distributing the latest J. Lo MP3 on Kazaa to millions of people is an application of fair use is clearly false. The moment you put the content online, you are a mass distributor the same as AOL, Tower Records, and the iTunes Music Store.

But the response is “I’m not distributing the content, I’m just downloading!” Fine. Though answer this — how many people have gone through their preferences and turned off the sharing bits of their P2P software? Given the current design of such software, you typically become a distributor as soon as you are finished downloading. This is even ignoring the networks where you must make something available in order to download.

Now, I’m not used to arguing on this side of the fence, but no one here has shown a single reason why any of the assertions I have made above are false. And to accuse me of having adopted an absolutist copyright mentality (I GPL much of my own software, and I’ve been working to put one of the largest collections of audio online under progressive licenses) is simply to avoid the points above, and attack the messenger and not the message.

If you really want to show that you are right and that I am wrong, answer the question that I’ve been repeatedly asking here — why is it okay to apply one standard to people who produce music (it’s okay to download and distribute their work in violation of the creator’s will) , and those who produce code (it’s not okay to download and distribute their work in violation of the creator’s will)? Until you can answer that question satisfactorily, your assertion that downloading music is ethical while MSFT violating the GPL is not, simply does not hold water.

posted by Chris Karr at January 9, 2004 12:29 PM #

Hey Aaron, how old are you, son? I ask because your logic is that of an 8 year old! Oh, since so many people like downloading, then the laws should be changed? Are you freaking kidding me? That argument is flawed on so many levels I cannot even begin to rebut its many deficiencies!

posted by Steve Sanderson at January 9, 2004 01:15 PM #

Let me try again: I’m not drawing a distinction between music and code. I’m drawing one between non-commercial sharing of verbatim copies and commercial sale of derivative works. I think it’s perfectly reasonable to allow one and place restrictions on the other (see, e.g., the nc-nd or nc-sa Creative Commons license).

posted by Aaron Swartz at January 9, 2004 01:20 PM #

Ok, so this is commercial v. non-commercial now? Would it be alright for MSFT to take something like Mplayer or VLC, throw a new front end on it, and release it as Window Media Player X for free? Or how about commercial sharing of non-verbatim works? What if you make available an album someone was willing and able to purchase, and they download it instead? Is that non-commercial sharing?

I also don’t see how you can even make a commercial / non-commercial distinction when sharing commercial media. If you decided to share a full collection of U2 albums and U2 decided to quit making commercial music as a result, is the original sharing non-commercial? I’d be interested to hear more how you decide what is and isn’t non-commercial.

And for what it’s worth, nowhere in your article above, do you mention anything about commercial or noncommercial sharing, you just talk about unqualified downloading.

posted by Chris Karr at January 9, 2004 01:39 PM #

I think the Creative Commons definition of commercial sharing is pretty clear:

any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

Downloading is generally considered to be non-commercial sharing of verbatim works. (There are some mashups out there on the P2P networks, but downloading doesn’t usually refer to those.) I only had 250 words, so I couldn’t really spell everything out.

posted by Aaron Swartz at January 9, 2004 01:50 PM #

That’s a decent definition of “commercial sharing”. Thanks.

However, I still have a few more questions:

  1. Since non-commercial sharing of music is okay, are non-commercial violations of the GPL okay also? For example, if Microsoft co-opted VLC code in Media Player, and released a proprietary application for free, is that non-commercial? Can a business entity even commit a non-commercial GPL violation as their root motivation is profit? Is there even any definition of a (non-)commercial GPL violation? Does such a distinction matter?

  2. Since Sharman Networks is making money on the basis of non-commercial sharing of copyrighted works on its network, are its actions unethical? They are reaping a commercial benefit from other commercial products without compensating the said authors.

Finally coming out and clarifying that you only support non-commercial sharing helps your case a bit, but you are still on very shaky ground.

Another hypothetical: say that an artist releases their tracks online for a reasonable price ($0.99) in order to cover the costs of production. Is it unethical to download the artist’s music for free, despite the effort he has made to make the content available and earn a living wage with his labors? Is there a cap at which you say that he’s not being able to live, thus downloading without compensation is unethical, but once he passes a certain income, it becomes okay? Or is this irrelevant and downloading is always ethical, regardless of the state of the artist?

posted by Chris Karr at January 9, 2004 02:07 PM #

Chris above pointed out that in the US and Canada, there is already a tax on blank media designed to offset the copyright violations that might happen because of the availability of the media. I believe he is incorrect in assuming that the money goes to artists. In the US at least, it goes to the labels, not the artists, and if you understand how the music industry works then you know that the artists never see a dime of this tax money.

Of course we pay these taxes even if we only make data backups, and paying the tax for piracy doesn’t buy you the right to pirate, so from an ethical standpoint Aaron’s proposal is better than the current situation.

As a practical matter though, I doubt one could equitably distribute the monies to the artists. The Industry is never going to let the laws cut them out of the loop and that means independant artists won’t get any of it, even if one were to get a top 10 downloaded hit.

posted by phriedom at January 9, 2004 02:19 PM #

(Not unlike the UK’s television tax.) I don’t download music, so why should the state compel me to pay for those who do?

Well, the system here in the UK is slightly more complex:

If you own a radio and/or TV you must pay a license fee (which I think for a colour TV is around £100 a year).

If you own only a radio, you must pay a smaller license fee

See for more details about the license fee. The important point is that if you don’t want any television or radio content, you need not pay the license fee.

That license fee goes to the BBC who run the channels according to their charter, which ensures that they will be free of political bias and produce content of varying types to appeal to a wide range of tastes. This has the effect that they are not motivated soley by commercial factors, as appears to be the case for networks in the USA (and indeed for the commercial networks here). Despite this, the BBC does engage in ratings wars with the commerical channels, although this is mostly confined to BBC 1, which tends to carry the most mainstream content. In general, I and many other people, feel that the BBC carries material of a significantly higher quality than the commerical channels.

The relevance of this is twofold: 1) If you don’t want TV, you don’t have to pay for the BBC. One would assume the same would apply to digital music. The system in the UK mandates that anyone who watches broadcast television (or radio) must pay for the BBC. This is probably the least popular aspect of the BBC.

2) A system that is state run, rather than commercially driven, may allow for the generation of higher quality content than a system that profits directly from unit sales.

These points may not be relevant to the ethics of digital downloading, but they do provide examples of how the clostest existing system (that I know of) to that proposed would function.

posted by jgraham at January 9, 2004 02:36 PM #

“And there’s a fair way to change it. A Harvard professor found that a $60/yr. charge for broadband users would make up for all lost revenues. The government would give it to the affected artists and, in return, make downloading legal, sparking easier-to-use systems and more shared music. The artists get more money and you get more music. What’s unethical about that?”

What’s unethical about that is its basically a Poll Tax. OK, so it wouldn’t have to be, you could charge people a different amount depending on their income. However the fact remains that your tax does not take into account what people want to do with their broadband - who are you to say that everyone with broadband wants to download music? You could have a system where everyone that wants a song pays for that particular song… oh wait, there already is such a system. iTunes, for example, legal downloads where you actually pay for what you are getting. This system is ethically sound, whereas your broadband tax sounds flawed to me.

Libraries may not pay per rental, but they do still pay, and you can’t borrow things forever. If you like a CD you have borrowed, you are quite likely to buy it. Not so if you illegally download a song, there is no incentive to. You said “when I download a song, no one loses it and another person gets it”. Although you are right that no one loses it (i.e. the song) the artist involved has still lost the money they could have earned from it.

Now, I agree that it is sensible to be able to download a song to see if you like it before you pay money for it, just as people will generally hear a song on the radio a few times before they decide they like it enough to buy it. However if you do like the song and wish to contine listening to it I believe you have a moral obligation to pay for it. I also agree that it sucks when back catalogs are not available. With the advent of systems such as iTunes more and more old albums are likely to become available in the future though. As an alternative to buying songs, some systems allow you to “rent” a song for a year, after which time you will quite possibly be bored of it anyway (I often am anyway).

The music industry does charge ridiculous prices for CDs, and seems to want to keep them that way (for example they are currently suing which has very cheap CDs). The industry is bloated and not enough money goes to the artist anyway. But legal download systems tend to be much cheaper, and at least the artist gets something for their art.

posted by Harry at January 9, 2004 05:03 PM #

I’m glad to see so many sensible things said so cleanly in the NYT. One further piece of ammunition is the rise of the DVD. These are a far superior product for retailers. They individually consume similar amounts of shelf space (or mail weight!) but sell for more. Stock management is simpler because there are fewer films and the hot ones are easier to spot and a theatre release is unbeatable promotion that concentrates interest in arelatively small number of titles. Money spent on DVDs is probably coming from the same budget as money to spend on CDs and time spent watching a DVD is time that could have been spent listening to a CD. I also bet that people get less use out of a DVD than they do out of a CD, This surely can’t have helped CD sales.

posted by Jack at January 9, 2004 05:22 PM #

Aaron, your arguments are difficult to follow. For instance, you say that only 50 million folks voted for Bush or Gore, but 60 million used Napster. However, you’re comparing a national population to a global one, with completely different contexts and somehow are saying that we should change the laws to make this legal.

Well, several million drivers every year also violate the speed limit, intentionally or not, but no states are rushing to remove the speed limits on the roads.

Not all laws are for the majority, and not all laws that are necessary are popular. In fact, the definition of a republic, the form of goverment the US is based on (as JC noted), is majority rule with minority rights — and that includes the minority that create art in all its various forms that a youthful majority feel entitled to copy or extend or alter without regard to the artists wishes.

You argue based on some form of what you perceive to be a legal premise, and the debate then becomes one of who can quote law and statute over the others. But I’ll argue from a moral standpoint. Copying a photograph to use in your weblog without permission, downloading software and not paying for it, or copying a song from the Internet without regard for an artists need to make a living, or modifying it without permission, is morally wrong. Just because several people do it, does not change the morality of the act. Just because some artists don’t care, does not change the morality of the act. Just because you believe that since you’ve only taken a digital representation of the object, does not change the morality of the act.

As for your broadband tax, I see no reason that someone like me should pay for your wanting to indulge yourself on demand. There are options for people to pay as they go with downloads — I suggest that instead of catering to those who want something for nothing, and then seeking to justify it with quotes of law (when you are not a lawyer), you might consider a more equitable solution.

posted by Shelley at January 9, 2004 05:30 PM #

Aaron’s position is a mess because he’s arguing against “all rights reserved” for “no rights reserved” but he really thinks “some rights reserved”. But then he runs into a big problem by disallowing the creator to define “some”.

The New York Times piece made me cringe until I saw that it was for the “Upfront” thing which I guess is aimed more at Aaron’s demographic (majority rules? ethicality based on sales?).

posted by pb at January 9, 2004 05:51 PM #

A fascinating debate and interchange of ideas. Unfortunately, there seems to be a melding of many concepts that might be better considered separately. If I may:

1) Creator’s control (or “rights”): The (brief) history and precedent for our current “intellectual property” (and I detest that term for its connotations) regime goes back to when everything belonged to the sovereign, and the privilege to benefit from one’s endeavours was granted individually by that sovereign. This changed in common law to a limited-duration and scope monopoly, after which the ownership of all creations reverted to what is now the public domain. Our convoluted mess of trademarks, patents and copyrights (in most Western countries) is an attempt to balance the public and private interest, while encouraging the continued advancement of arts and sciences. The emphasis is on the word “balance.” A creator’s rights must be balanced with advancement, and this notion has been all but lost today, when said “intellectual property rights” are being used primarily to stifle innovation and advancement (eg. the assemblage of a “defensive patent portfolio”), or to effectively maintain indentured servitude (“Thanks for the recording contract, RIAA!”) rather than fairly compensating artists or creators.

Creative control, subject to all the balances of, say, the Berne Convention on copyrights (for example) is better implemented in the evolving Creative Commons licensing regimen, and proposed Eldred Act, and a sorely needed overhaul of the patent review process, than the current processes that are now anachronisms.

2: Compensation for artists: Yes, artists should be compensated, and, as is widely known, many musicians who sign with member companies of RIAA tend not to be compensated fairly, by and large. The radio model has worked well, and the proposal for a government imposed “tax to fund the creative” - regardless of how it is implemented (eg. via tariffs on recordable media as now exists in Canada, a tariff on broadband internet connection, etc.) - is a societal common good in an enlightened, civilized society. The argument of “I don’t download; I shouldn’t have to compensate those who do” is simply mean-minded, and echoes similar arguments that pertain to road upkeep, education tax levies and similar funding mechanisms for the common good of society. As has been demonstrated elsewhere (and most particularly, by independent musicians) they tend to make more through downloadable music (say of their “back list”) to promote their new music and live concerts. This retrieves radio in the 1950s to a certain extent, payola notwithstanding.

3: Fair Use and Right of First Sale: These are part of the social compact that the compromise of copyright laws attempts to balance. They are well-established principles against which few, if any, would (or could) reasonably argue. The problem we now face is that contract law is being used to circumvent and contravene both the social compact, but more importantly, copyright law, that has enshrined FU (no pun intended) and RFS as, well, law. By imposing DRM mechanisms, a user could be “forced” to accept an EULA that restricts or completely cancels his FU and RFS rights, that is, if he wants to use the software in question. If that software is, say, Microsoft Word, or Windows Media Player that are ubiquitous, and in which much content exists exclusively, the choice that the user apparently has NOT to agree to the EULA is severely limited. This is a good argument for open source alternatives to content-managing applications like Word and WMP, for instance, until we apply Trusted Computing and the Digital Millennium Copyright Act. An open source alternative will not by “Trusted,” and any attempt to get around the Trustedness would on its face violate DMCA. A slam-dunk for a wide variety of vested-interest companies, and a tremendous loss of the ability to innovate - Lawrence Lessig calls it “the right to tinker” - for the public.

Historically, those who are, at any point in history, on top want to stay on top, and do their utmost to prevent any disruptive innovation. We have seen this repeatedly, and perhaps the most graphic example is the famous Sony VCR lawsuit. Home recording of TV programs was considered piracy in precisely the same way that downloading music is considered piracy today, with the same bogeyman consequences outlined: The death of the medium, no incentive to produce new work, artists not being compensated, and so forth. We all know what happened. The proliferation of VCRs in the home led to the growth of movie-on-videotape, from which most studios made ALL their profits over the past decade and a half. Of course, television was going to kill movies, the internet was going to kill the publishing industry…

We are terribly poor at linear prediction as a society, and especially as those whose industries are anticipating doomsday scenarios. The issue, as I see it, is not whether downloading is stealing or not, or even ethical or not. The issue is, what are the unseen structural changes in the dynamics of our society/business/industry/whatever, from which new business opportunities can be created. From what we’ve seen time and again throughout history, what evolves as a new business is many times as profitable than what we wanted to hold on to as the old business.

posted by Mark Federman at January 9, 2004 06:42 PM #

Copyright does not scale.

Information is free.
The only question is:
are you?

posted by Scott Draves at January 9, 2004 07:13 PM #

Your statement: “I don’t think creators forfeited their rights to control distribution — they never had them! There are laws that provide specific penalties for specific acts, let’s not confuse them with some magical scheme of “rights for creators”.

This is just incorrect. If you do not like copyright that is one thing but to deny its existence is weird and wrong and undermines credibility you should be able to lean heavily on. Copyright is a “right of the creator” which, for example here in Canada, can be manipulated in a number of ways to provide compensaiton where new media challenges distribution patterns. But the underlying law remains regardless of techonolical advance. Copyright does scale. The alternative, that “something new” has been created, smacks of 1998 e-conomism. Digital media are no more as revolutionary in relation to copyright than the mimeograph.

posted by Alan at January 9, 2004 09:20 PM #

The proposed $60/annum broadband tax would be very similar to the way most local public libraries are funded, by a property tax which all residents must pay, either directly (if they own their residence) or indirectly (via their landlord if they rent), whether or not they use the local library at all.

But this is because lending libraries are considered a public good, enhancing property values, etc. Would being able to legally download otherwise copyrighted music over broadband be considered a similar general public good which makes it worth taxing all broadband users?

posted by firewood at January 10, 2004 01:15 AM #

The basics of capitalism are in conflict with the notion that a flat $60/year subsidy will result in good music. Demand drives innovation; socialism stagnates it. Downloading someone’s intellectual property without permission is stealing. Don’t muddy the waters by cross-wiring two distinct issues.

posted by Tom Termini at January 10, 2004 01:50 AM #

50 Million Americans voted for Bush or Gore. 60 Million Worldwide used Napster.

Please don’t confuse America with the world Internet population.

posted by Reynolds at January 10, 2004 05:42 AM #

Tom, I don’t see why a different mechanism of collecting the money is in conflict with capitalism, demand, innovation, or good music. If the musicians are rewarded in the same way as before for popular work, why would the money’s source affect innovation?

posted by Aaron Swartz at January 10, 2004 05:35 PM #

Reading the article, it’s easy to ask the question ‘if “… downloading increases sales”, why do you need a broadband tax?’ I think this might be where the logical thread of the piece doesn’t work - at the beginning you’re saying that copying music files doesn’t harm the market, but then at the end you’re saying that there should be some form of compensation.

Perhaps you should make the distinction clearer: For those creations for which downloading causes lost market value, there needs to be some form of compensation per copy made (whether this compensation is collected from a group or individuals is debatable). For other creations (such as music that isn’t for sale) non-commercial downloading (ie for your own use, not for profit) could be considered ethical and lawful.

The onus should be on the creators to prove that they have lost revenue and deserve compensation, and that the lost revenue was not in any way due to competition, economic trends, or their own actions.

posted by alf at January 10, 2004 05:36 PM #

Funny, with the discussion of the $60/year broadband tax, some would make the assumption that better music would inevitably result. I’m sorry, but better television hasn’t been the inevitable result of the BBC. Sure, there’s been some good stuff, but there’s also quite a lot of dreck that I see on BBC-America.

Conversely, the U.S. system has significant numbers of channels that are putting out significant numbers of programs, many of which are excellent. To take the example of HBO, you could name “The Sopranos,” “Six Feet Under,” and “Sex in the City” - at least according to the critics.

Transfering that knowledge to music, and you have a huge amount of immensely innovative, worthwhile music being made (Gillian Welch, System of A Down, Ani DiFranco to name a few). So there’s already a good deal of great music. It’s just not at the top of the charts, and not always under the RIAA umbrella.

posted by bryan at January 10, 2004 06:44 PM #

Another factor to consider: DVD sales have skyrocketed in the past few years, leaving less cash to spend on CDs. People would rather buy a movie than a CD, especially when they are priced almost the same!

Also, loses are inflated by the RIAA- if a guy downloads 1000 songs because ‘he can for free’ doesn’t mean he would have bought all those songs if he couldn’t have downloaded them! There should be a poll asking the question- what percentage of the songs you have downloaded would you have actually purchased otherwise? Some would answer, like me, 0%, but the average would I bet be under 10%.

posted by Ray at January 11, 2004 01:01 AM #

“Tom, I don’t see why a different mechanism of collecting the money is in conflict with capitalism, demand, innovation, or good music. If the musicians are rewarded in the same way as before for popular work, why would the money’s source affect innovation?”

In that case you clearly don’t understand how Adam Smith’s “invisible hand” works, which is the fundamental tenet of capitalism and supply and demand theory.

posted by Harry at January 11, 2004 11:06 AM #

Uh, HBO seems to work on a system similar to the BBC television charge and the broadband tax — the only difference is that they can limit the people who can receive HBO to those who pay the charge.

posted by Aaron Swartz at January 11, 2004 02:23 PM #

great stuff man, and I totally agree, but there are two things wrong.

one, 60 million people using napster included people from foreign countries. the point you were making is still valid however, it just needs expansion and clarification IMO.

two, you must realize the record industry would NEVER agree to the broadband “tax” because the money would actually go to the artists ;)

otherwise, great bit of writing!

posted by theflinger at January 11, 2004 07:40 PM #

“Stealing is wrong. But downloading isn’t stealing. If I shoplift an album from my local record store, no one else can buy it. But when I download a song, no one loses it and another person gets it. There’s no ethical problem.”

As it stands, this argument can be applied to anything that is, or can be, put into digital form. Do you advocate yearly subscription fees for movies, books, newpapers, and magazines? (Movies an especially difficult problem, I think, especially since they, like music, are being shared right now.)

“Libraries and video stores (neither of which pay per rental) hurt sales too.”

So do you think the Library of Congress should be allowed to take Amazon’s full text database (or do their own), and give books away to the public?

posted by Michael S. at January 11, 2004 11:34 PM #

Yes, it is believed that the subscription system should be extended to movies as well. (I forget if the $60 figure includes them or not.) If magazines, newspapers, and books also suffer the same irreparable harm, then the system should be extended to them too. But as I argue in the first part, I think this harm is unlikely. (There are additional reasons as well, some of which I have provided in these comments.)

“So do you think the Library of Congress should be allowed to take Amazon’s full text database (or do their own), and give books away to the public?”

Yes, I do.

posted by Aaron Swartz at January 11, 2004 11:54 PM #

Re: blank media levies (tape tax)

phriedom: I believe he is incorrect in assuming that the money goes to artists. In the US at least, it goes to the labels…

Strictly speaking? Neither. It goes to ‘copyright collectives’. These societies then take the collected funds, and distribute them to artists. They try to apportion them according to what it is thought the blank sales represent in terms of material, but it is usually based on sales and airplay. Of course, this only works really well for popular artists. It can be especially bad if your work is out of print, since there will be no sales at all. (Individual artists contracts’ might actually specify that their funds go to their label, but that’s not a given in the system.)

In this sense, the collectives are trying to measure the “invisible hand” of the market, and use what it tells them to re-distribute the funds.

Certainly, individual measures of every copy would be more accurate - but the cost of that accuracy would be a ferociously expensive system, that could very well end up costing the whole industry more than they gain.

As for “Demand drives innovation”? Absolutely. But if the cost of running the system takes out more than my innovation is worth to you, then there is nothing left for me. If I’m not getting any money, I’m not going to innovate, capitalism or not. If I’m just given some money, I may still innovate a little, socialism or not.

Somewhere between these two extremes, maybe we find a system that everybody hates, but which works sufficiently.

posted by Chris at January 12, 2004 02:53 AM #

I’m rather disappointed with this article. It’s short, and it hardly makes a case for downloading. One easily could elaborate on what the RIAA has done to stifle the indie scene, whose only way for distributing their music is sometimes downloading, or how the current music scene is filled with scores of mediocre at best talent, and how radio (clear channel for example) plays numerous bands over a hundred thousand times each year, which I would hardly call sufficiently using their radio time. The author should also have advocated for copyright reform, which would be a great step into solving this mess.

I could go onto the street and tell people what was put into the article, and a lot of them would say “so?”. You need to offer a lot of strong points, not just a few small points.

Just my 2 cents.

posted by Mike at January 12, 2004 08:13 AM #

I also forgot to mention that one could have also easily talked about the numerous horrible things the RIAA has done to try and erode our civil rights. Hell, one could go on and on how pay for play still happens in the raido inudstry. I’ve personally talked to a few DJ’s about this, and they deny that it still happens, but when I asked them about other events in radio, they seemed completely ignorant on the issues and got defensive and evasive when I pointed it out.

Anyway, I suggeset writing a ‘part 2’ to this, making it a bit more lengthy. If the NYT doesn’t want it, who cares? There’s many websites out there who wouldn’t mind having it.

posted by Mike at January 12, 2004 08:16 AM #

“Uh, HBO seems to work on a system similar to the BBC television charge and the broadband tax — the only difference is that they can limit the people who can receive HBO to those who pay the charge.”

That is a bizarre statement. The “only” difference is the chasm between a tax and and no tax. HBO’s programming is good specifically because it is competing for your dollars!!

posted by pb at January 12, 2004 11:23 AM #

Aaron: “Uh, HBO seems to work on a system similar to the BBC television charge and the broadband tax—the only difference is that they can limit the people who can receive HBO to those who pay the charge.”

There is a major difference between HBO and the BBC: I can watch television without paying for HBO, whereas (assuming I lived in England) I have to pay the BBC to watch television (technically, if you own a TV).

Now, to the question at hand: is downloading stealing? Aaron, you are correct in that a copy of a digital work does not deprive me of my own work, but it does deprive me of a lost opportunity for income (however hypothetical). Having a $60/year “tax” on broadband is not an answer—I for one, do not download music and thus this would be a $60/year wasted for something I do not wish. And even so, how would one determine who gets compensated? A statistical method like the ASCAP, BMI or SESEC use? Strict record keeping? Who keeps these records? How are they compiled? Keeping records is expensive; do you realize how problematic it is to just keep phone records? Most of the complexity in modern phone switches comes from maintaining accurate phone usage records.

Aaron, I would also suggest you do some history reading—French Revolution and the time period immediately afterwards, with a heavy inphasis on intellectual property. After the Revolution in 1792, intellectual property was abolished by the new French Government. Please report back on the results and give reasons why France has since restored intellectual property rights.

posted by Sean Conner at January 12, 2004 06:44 PM #

I thought Chris Karr (January 9, 2004 10:57 AM)made an interesting point and unintended proposition when he described the possibility of ISP’s charging a media fee as opposed to the gov’t.

Have ISP’s discussed the possibility of a standardized media ‘tax’ with which they could pay copyright holders (RIAA) and under which the users would be protected from lawsuits? A single regulated rate available to all interested ISP’s (regardless of size/subscriber base) would be necessary to prevent unfair competition.

I think such a practice would eventually parlay into similar agreements with the MPAA, etc.., then, ultimately, the tax might become so common as to become the defacto $60/yr ‘tax’ Aaron & Fischer suggest.

It’s a patchwork solution, however it would allow copyright holders to test the waters and see how lucrative such a compensation system could be. My guess is that the steady revenue stream and the costs associated with reverting to the previous economic model would be incentive enough to maintain this (pardon the poor word choice) indemnification tax.

posted by AdamThomas at January 12, 2004 06:48 PM #

i really think that if the companies didnt want us to download music off the internet why do they post it to where we can load up?and every one had good points.

posted by Jayna B. at January 22, 2004 11:23 AM #

I think there is nothing against downloading! If they have it on the inernet then they cant stop us from going on and looking up music. Besides,most of the music that people listen to does not play on the radio anymore and sometimes they dont sale the cd`s anymore, so the inernet is the only way to hear the music we like. So if they call that stealing then they might as well get rid of MTV because your not paying for that either.

posted by Allison Holton at January 22, 2004 11:26 AM #


posted by Slavco Tausanov at January 30, 2004 04:56 PM #

counter- counter point: downloading is more than stealing.

if you go to a record store and steal an album its true no one else can buy that album. but if you download it you are making a copy if it with out permission. lets understand that downloading is basically making a copy of someone elses work. if you try this for your homework the teacher gives you an “f” for plagerism.

now, try going to a record store and tell them you just want to “copy” or as the web calls it “download” an album as see if they say “ok” as long as you dont take the original from the store, its cool. right!

it very simple, if your getting something for nothing, its stealing unless the owner is freely giving it to you.

silly people


posted by darryl at February 8, 2004 08:06 PM #

The problem with the internet is that their are no restrictions anyone can post anything anywhere or at any time.

posted by Ben Dover at February 20, 2004 03:06 AM #

I agree with darryl. And one comment - if something is in internet, it’s implied that it’s available to download (if it wasn’t stolen before).

posted by Otov at February 29, 2004 01:22 PM #

Downloading music makes an artist more popular. Yes I could go to the store and buy an album with 18 songs on it for $20. But that is too much. Retail stores make the cost of purchasing an album a little too steep. I also could stay home, using my valueable time and searching for and downloading songs from an arist. Alot of the songs artist record aren’t even put onto a CD so I can get those songs by downloading. Most of the time, these songs boost an artist’s morale and popurlarity. Why go after the persons doing the downloading, what about the persons providing the download service? Downloading music only helps an artist become more popular.

posted by Princess at February 29, 2004 07:58 PM #

i think that people should be able to do what da hell they wanna do and artist who dont want there music downloaded they should find a way for it not to be on the internet

posted by Angel at March 3, 2004 02:49 PM #

F*CK THE RIAA!!!!!!!!!!

posted by Dave at March 17, 2004 05:48 PM #

Hi everyone! i’m new here but i am doing a debate on this topic for school! if you have any really good points for both pro and con, can you email them to me? it would be a really big help! Thanx :)

posted by Sarah at March 23, 2004 10:51 AM #

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Aaron Swartz (