Theft versus Loss in Music Piracy
August 6th, 2007 by Kavan WolfeSeveral 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.
August 6th, 2007 at 12:55 pm
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August 7th, 2007 at 7:26 pm
What you say is mostly the truth, they can’t prove that you were going to pay money for it if it wasn’t available online, maybe a friend has it or you’re local library has it, take it from one of them instead, they certaintly can’t sue you for that.
But is music downloading theft? In my opinion, yes. Theft to me is taking something that belongs to someone else, without their consent, thereby making it illegal. If an artist wants his stuff available for P2P download, for whatever reason, that is the equivalent of leaving the doors of your house open and hanging a sign that says, take whatever you like. They are losing property, and the others are getting something for nothing, but it is legit.
This is where it gets tricky, what if a person bought an album legitimatly, and then put it on a P2P service. You are not stealing from the RIAA per se, you are more taking someone else’s property (he bought the album, it is his property after all) with his permission.
The point is, the RIAA is wasting their time sueing individuals. They had to pay for tyhe legal fees for their latest “victim,” they aren’t getting anywhere. They should target large companies who are ENABLING this stuff to happan.
Napster and Kazza didn’t go far.
August 8th, 2007 at 8:41 am
There have been huge losses in the music industry. The numbers are available, and not propaganda from the RIAA. Album sales have dropped about 7% each year since 2000. The peak of sales came about in 2000 with the release of *NSYNC’s album which made the guiness book of records as the fastest selling album of all time. 2000 also marked the peak of understanding the popular culture. *NSYNC’s album was manufactured by music execs to be a hit. They transitioned the band to Jive Records for the added street cred, and had a team of no less than 54 people to work on the album’s music and art work, and marketing.
Since 2000 the market has begun to shift. With the advent of good applications for finding music online popular culture has become more fragmented. Rather than listen to what is dictated by pop culture people are finding niches and sub-niches of music that appeals to them. The RIAA can’t deal with this fundamental shift in buying habits because it requires signing vastly more artists for the vastly more niches. And the more albums produced simply can’t fit in the brick and mortar stores.
It’s likely that there will never be an album to beat the record set by *NSYNC. The RIAA has to accept that big hits may be a thing of the past. Their intellectual property is the knowledge of how to turn a mediocre singer into an international star, but their tricks won’t work in a fragmented market.
The RIAA and Music companies are loosing more than money, they’re loosing control. And there’s no easy way for them to adapt.
August 8th, 2007 at 11:17 pm
The RIAA bangs their wardrum saying that albums sales are declining and that it is all due to piracy. They refuse to accept the possibility that is may be due to the fact that there are more sources of music now, many of which are cheaper and easier to consume than a traditional album.
10 years ago, streaming content was in its infancy. Now you can (legally) listen to any song out there on demand. The internet has made it possible for previously invisible independent/unsigned bands to get their music out. I would bet that while album sales are declining, actual music consumption is increasing.
Until the RIAA lets go of this traditional album model, they will continue to get outpaced by the newer, more “modern” music sources.
August 8th, 2007 at 11:20 pm
Addendum, once again.
I got a bit sidetracked and lost what I was going to say.
My point is, you can no longer measure the value of music in the simple sense of the cost of an album. I don’t see them getting anywhere with tort law considering it is borderline impossible to put a true value on what is being “stolen”.