Take No Prisoners

Theft versus Loss in Music Piracy

Several interesting points came up in the discussion of my last post, which addressed how the RIAA deceives the public regarding its imaginary losses due to music piracy.

Paul wrote:

“Saying that it’s not a loss if the person wouldn’t buy it if it weren’t available for free is like saying it’s not stealing for me to take a Ferrari without paying for it, because I wouldn’t buy it otherwise.”

On the one hand, I am in fact claiming that the RIAA does not experience a loss when someone downloads a song without paying, if that person would not have been willing to buy the song if it were not available for free. Furthermore, I agree with Paul that taking a Ferrari is stealing whether or not I would buy it otherwise. So haven’t I just contradicted my previous post? NO!

This discussion highlights the difference between tort law and criminal law, a distinction common to most developed nations. Loss is a topic under tort law; theft is a topic under criminal law. When you download a song through a P2P service, the RIAA can sue you (tort law) for losses they incurred due to your actions, while society can prosecute you (criminal law) for theft. These are distinct actions. If the RIAA sues you and wins, the RIAA gets the money. If society prosecutes you and wins, either you go to jail or society gets the money. Take a wild guess which route the RIAA is apt to take.

If the RIAA tries to sue you in tort for losses caused by your actions, they have to show that your actions in fact caused a loss. As I explained last time, the RIAA’s losses are imaginary, so they have no basis to sue you. To continue the analogy, if I break into my neighbor’s garage and steal his Ferrari, he loses the Ferrari, and can therefore sue me for his loss. If I download a song from the internet, the music industry cannot sue me because I have not caused a loss. The music industry didn’t lose the song, or income associated with it.

Whether or not downloading music constitutes theft in your country depends on how theft is defined in your criminal code, or equivalent. I’m not going to debate this, because 1) it depends on the country, and 2) the interpretation of law is best left to judges. However, I welcome a debate regarding whether downloading should be regarded as theft.

In conclusion, unauthorized music downloading may or may not be theft, depending on your country. However, unauthorized music downloading does not cause a loss to the music industry; therefore, the music industry has no legal basis on which to sue downloaders.

On to Part 3 –>