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Distributed August 18, 2003
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About 1,200 Words

Marc Perlman
Why file-sharing doesn’t feel like stealing

Americans are more likely to obey laws they perceive to be morally right, laws they believe were enacted through an impartial legislative process. The Recording Industry Association of America, among the wealthiest and most influential of industry lobbyists, has a long way to go to convince Americans that laws governing file-sharing were enacted for the good of the general public. It’s easier to sue.

Editors: A 700-word version of this op-ed is also available.

Like an army of occupation, the music industry is about to take the battle against file-sharing into the homes and dorm rooms of civilians. The Recording Industry Association of America (RIAA) – in a move some analysts have compared to the American involvement in Vietnam – has decided to sue its own customers.

File-sharing involves an estimated 57 million people worldwide, surely the largest group ever assembled for the purposes of organized law-breaking. Yet they are peculiar criminals; the great majority are otherwise law-abiding citizens who wouldn’t dream of sneaking a CD out of Tower Records. The RIAA says downloading equals shoplifting; why do millions of people seem to disagree?

There has long been a gap between copyright law and the informal norms of everyday life. Last May a survey by Edison Media Research found that 44 percent of Americans thought there was nothing morally wrong about downloading free music. Yet relatively few file-traders are “information-wants-to-be-free” cybertarians. The survey also found that about half of all downloaders were ambivalent: They had qualms about file-sharing, but did it anyway. Ambivalence, then, is the key to the psychology of downloading. Intellectually, we know it’s wrong. But somehow it doesn’t feel like stealing.

For years our society has been sending mixed signals about file-sharing. Shawn Fanning, the inventor of Napster, became a star: His face appeared on the covers of Time, Fortune and Business Week. At Wired Magazine’s 2000 awards ceremony, Courtney Love flirtatiously introduced Fanning as her future husband. In an editorial that appeared during the Napster trial, the Wall Street Journal called on the “kids” to “keep writing that software.” When the RIAA announced it would sue individual file-sharers, ran a story on new software that promises anonymous downloading, and provided convenient links to sites offering the cutting-edge programs Filetopia and Blubster.

Nor did the business community present a united front – after all, hardware manufacturers and service providers stand to profit when consumers want to transmit and store enormous files. Cracks appeared even within the RIAA: Bertelsmann, one of the Big Five music multinationals, invested in Napster and is now being sued by its fellow RIAA members.

Furthermore, the damage downloading inflicts has little gut-level impact on the moral reflexes. An MP3 file is a close approximation to what economists call a nonrivalrous good: You can “share” it with me without giving up possession of it. So the “theft” of digital music does not deprive anyone else of anything – or so it may seem.

Of course, fans who download rather than buy CDs are eroding the market for recordings. But market harm is more abstract than the loss of a physical object and virtually impossible to quantify. Does each downloaded MP3 equal one CD that will never be sold? Obviously not; file-traders are well aware that they download a lot of music they would never pay for.

Nevertheless, CD sales figures have dropped, and though we can’t say how much of the decline is due to file-trading, large record company losses will discourage future investment. Shrinking companies will trim their artist rosters and will sign fewer new bands. Aren’t downloaders denying career opportunities to the next generation of musicians?

Perhaps, but by the standards of American public life file-traders are not being unusually short-sighted. When we try to think about the vast networks of economic circulation that surround us, the immediate demands on our pocketbooks can easily overshadow our concern for the public good or even our own long-term interest. Remember the California tax revolt of 1978, when voters for Proposition 13 starved local government of cash. They knew (in an abstract way) that their tax dollars returned to them in the form of social services. Yet the majority weren’t willing to accept cuts in those services; indeed, many of them favored increased government spending even as they slashed its revenues.

Finally, downloaders condemn their condemners. This type of argument is legally irrelevant to the guilt of the accused – stealing from a thief is still stealing – but it is frequently heard in public life nevertheless. For example, in 1977 the conservative writer Victor Lasky published the best-selling It Didn’t Start With Watergate, to show that Republican “dirty tricks” had been common practices under Democratic administrations. File-traders use similar arguments to paint the music industry as exploitative and unworthy of their patronage. They point out how the Federal Trade Commission accused the RIAA’s members of collusion to keep CD prices high. They quote the terms of the typical industry contract that can keep even successful artists in debt to the recording companies. They bemoan the industry’s influence on the legislative process. In a scathing speech publicized on, Courtney Love told the story of a Congressional aide who quietly amended an unrelated bill to enhance the power of the recording companies. The aide was promptly hired away by the RIAA as a lobbyist. (Congress repealed the provision once the story came to light.) Downloaders aren’t pirates, Love concluded; the recording companies are the real pirates.

Cary Sherman, president of the RIAA, has his own theory of the psychology of downloading. “People don’t shoplift, not because they’re worried about morality, but they are worried they’re going to get caught,” he recently told the San Francisco Chronicle. On this reasoning, people will break the law whenever they feel immune from prosecution.

But fear of punishment is only one factor that keeps people law-abiding, and it may not be the most effective one. As social psychologist Tom R. Tyler has argued, people are more likely to obey laws they perceive to be morally right, and laws they feel have been enacted through an impartial legislative process. On this view, the best way to stop downloading is to make it repulsive to the public’s sense of morality and to enhance the legitimacy of intellectual property in the public mind.

The music industry has already mobilized its stars to appeal to the public conscience. Artists from Britney Spears through Luciano Pavarotti to the Dixie Chicks have called on their fans to do the right thing. Still, there is no guarantee that fans will let their affection for the artists override their distrust of the industry. (For example, how might a Dixie Chicks fan react to their plea if he or she knew that the group sued their record label in 2001 for $4 million in unpaid royalties?)

Alternatively, the RIAA might try to convince the American people that our copyright laws were crafted by our representatives in Congress through impartial deliberation to promote the welfare of all Americans, not to create special profit opportunities for the few. Unfortunately, making this case before the bar of public opinion will be harder than filing a few hundred lawsuits. The story of copyright legislation (recently retold by Jessica Litman in her book, Digital Copyright) looks very much like a story of deals negotiated between industry lobbyists. The RIAA itself has become one of the wealthiest of these lobbyists; over the last decade its budget has tripled.

So on second thought, Mr. Sherman, perhaps you have the right idea. Teaching us to respect the fair-mindedness of copyright law is a challenge you might want to sidestep. Prosecution may be the better strategy after all.

Marc Perlman is an ethnomusicologist at Brown University.

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