The War On Bullshit

Previously in this segment, I discussed how the RIAA fabricates a link between unauthorized music downloading and shrinking music industry profits. After some insightful discussion, I also differentiated the treatment of piracy in criminal and tort law. Today I turn to what might be called the Robin Hood argument.

Francois writes:

“And even if such a correlation [between music downloading and profit erosion] could be demonstrated, it still would not justify bullying and threatening teenagers… [I think] the current RIAA strategy of blackmailing teenage students is … mafia-like.” (Post-press note: Francois wasn’t happy with the way I presented this - see his comment below)

Dar Al Harb writes:

“I always feel for those bastards who lost a few million. Never mind who they hurt or how they hurt in thier endevour to make millions of dollars”

These quotes exemplify a common attitude, especially prevalent in western society, that the big bad corporation deserves a little payback and should not pick on poor, helpless teenagers, students, seniors, etc. I call this the Robin Hood argument: Robin Hood isn’t a bad guy because his victims are rich and his beneficiaries are poor.

This sort of reasoning is undesirable in the context of P2P file sharing for two broad reasons.

Reason 1: The Big Bad Corporations are owned by regular people.

When someone argues that the music industry is comprised of evil, faceless corporations, they forget who owns those corporations. The owners aren’t just old white megalomaniacs; these are public companies owned by a wide variety of people. It’s not even just people who own stocks, either. Do you invest in mutual funds? retirement savings plans? bonds? exchange traded funds? other derivatives? When the big music companies lose money, it’s not just the wealthy that lose money, its also the middle class and even the poor who have directly or indirectly invested in them.

Reason 2: Poverty does not justify theft of non-essential goods.

If a penniless parent with a family on the brink of starvation steals a loaf of bread, I think many of us will forgive him or her for taking the lesser of two evils. However, music is not food, it’s entertainment, and humans generally do not need entertainment to survive. I suspect that most property crime is committed by people of limited financial means. If a guy steals your car stereo, do you want him let off the hook just because he’s poor? As a society, we do not accept poverty as a defense for crimes or wrongs against others; therefore accepting poverty as a defense for piracy would set a dangerous precedent.

Being poor may be an excuse for stealing essential items like food, but it does not justify your nephew’s 80 000 track pirated music library.

Qualifier

Please take note, I am not saying that P2P file sharing is theft, or that the Music Industry hasn’t screwed over artists for years. I’m not saying that file sharing is unethical or causes the Music Industry’s “losses,” and I am not saying that the RIAA is justified in its absurd legal behavior. All I am saying is that if the Music Industry were being victimized by downloading, the fact that the downloaders are poor while the Music Industry is rich is not a defense. It is not to dilute strong defenses by combining them with weak defenses like the Robin Hood argument.

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 –>

(or, “Why the RIAA is full of BS”)

The Record Industry Association of America (RIAA) wants you to believe that unauthorized music downloads are responsible for the music industry’s recent decrease in sales and profits. It has two primary arguments (and since they made The War on Bullshit Blog, you can probably guess what I think of them…)

Individual Downloads

Its first argument runs as follows:

1. “The U.S. music industry loses more than $300 million per year to street piracy alone” (http://www.riaa.com/faq.php)
2. Peer-to-peer (P2P) downloading is way bigger than street piracy (http://www.riaa.com/faq.php)
3. Therefore, the U.S. music industry loses way more than $300 million per year to peer-to-peer downloading.

Whether this makes sense depends on how you calculate a loss. If, every time someone downloads a song, you write that up as a $1 loss, then the RIAA has a point… wait… something smells like bullshit!

A peer-to-peer download only represents a loss to the music industry if, were that download unavailable, the downloader would have made a music purchase. Furthermore, even if the downloader were to buy the song on iTunes for, say, $1, that doesn’t imply $1 profit for the music industry. Profit = Revenue - Expenses. A peer-to-peer download does not create any expenses for the music industry. Recording, manufacturing and marketing a CD does.

The RIAA is trying to hoodwink the public and lawmakers into thinking that it’s being victimized by downloading - that downloaders are stealing millions upon millions of dollars from the music industry each year. But it’s all bullshit. They can’t establish that P2P file sharing is causing their decrease in profits. This causal relationship constitutes a theory, one that can be studied scientifically. And guess what?

There is no scientifically defensible evidence that an individual P2P download affects the profits of the music industry.

At this point, individual downloaders are off the hook as far as tort law is concerned. If the RIAA cannot establish that the individual accused had the accused effect, and they can’t, there is no basis for a lawsuit. End of story. (I sure hope a few judges read this…)

File Sharing as a Social Phenomenon

However, it could be argued that while an individual downloader is not responsible for the music industry’s losses, the social phenomenon of P2P file sharing is. This could still form a basis to outlaw this fine pastime.

The argument the RIAA can draw on goes as follows:

1. Before P2P file sharing caught on, CD sales (or profits, or revenues, or whatever) were rising
2. After P2P file sharing caught on, CD sales (or profits, or revenues, or whatever) have been falling.
3. Therefore, P2P file sharing caused the fall of CD sales.

This isn’t really bullshit, it’s just false. More specifically, this is a classical logical fallacy called post hoc ergo propter hoc, a Latin phrase meaning, “after this, therefore because of this.” This is akin to saying, ‘I drank green tea before that big earthquake, therefore, drinking green tea causes earthquakes.’

There is no scientifically defensible evidence that P2P downloading as a social phenomena affects the profits of the music industry.

In fact, there is significant evidence to the contrary.

Economic study on the effect of music downloads

According to this new study: “the estimated effect of file sharing on sales is not statistically distinguishable from zero,” (p. 3). This is a formal way of saying that the authors found no causal link between P2P file sharing and industry losses.

To make this claim, the authors construct a variety of mathematical models to estimate the effect of downloading on music sales. They conclude: “Using detailed records of transfers of digital music files, we find that file sharing has had no statistically significant effect on purchases of the average album in our sample,” (p. 38) If you read the full paper, you will find that the authors cannot wholly reject a relationship between downloading and sales. This is a limitation of statistical reasoning - statistically, you can fail to find evidence of a relationship, but it’s much harder (potentially impossible) to show definitively that two variables are completely unrelated. Thus, conservatively speaking, this study indicates that, if there is an effect at all, it must be very small.

Thus, in the absence of scientifically defensible evidence to the contrary, the RIAA’s claim that music downloading is diminishing the music industry’s profits are bullshit.

On to Part 2 –>