Is Filesharing Wrong?

"Downloading copyrighted content from the internet is illegal." say the copyright warriors.

That might be true, but only if you take a very restrictive view of the law. This is something that the lawyers, the judges and the politicians will have to fight out.

Reguardless of what they decide however, the fact is that our government is very corrupt. Because of this corruption, and because of the fact that the copyright law of the United States contradicts not only the Constitution but also itself, and because filesharing is a normal, everyday activity for millions of people which the government has no business regulating anyway, I cannot respect this law. Furthermore, I do not need to respect it because unless I am very very unlucky to be chosen as one of the few scapegoats by the RIAA or MPIAA and am sued for millions of dollars more than the commercial value of that which I might have downloaded, nobody is going to know or even care.

"Downloading copyrighted content from the internet is wrong then" they say.

The question I am interested in is not whether filesharing is legal, but whether it should be legal. And before the government tries to regulate an everyday activity that millions of Americans actively participate in, is should examine whether this activity is actually wrong, and whether the costs of stopping it are worth the benefit of it being stopped.

Dollar amounts in this "cost" are much less important than moral "costs". Stopping murder by executing murderers may make sense, but if stopping murder required executing the entire families of murderers, then the moral cost would outweigh the moral benefit. Stopping illegal parking by executing those who park illegally would have the moral cost outweigh the moral benefit by a ridiculous margin.

Stealing is wrong. That is obvious. Is filesharing stealing?

The question "Is filesharing stealing?" is very much like the question "Is firing a gun murder?" Firing a gun is not nessicarily murder, depending on what is being fired at and why. Filesharing is not nessicarily stealing, depending on what is being shared and under what circumstances.

I believe that some kinds of filesharing are "stealing" in some situations. But many times filesharing is NOT stealing.

A filesharing transaction might be stealing only if the answers to all of these questions is "YES":

1. Is the content you are downloading basically a copy of a copyrighted work?
2. Does the copyright owner insist on the "exclusive rights" that the copyright grants him or her?
3. Is the content you are downloading commercially availible for sale by the owner at the time you are downloading it?
4. Have you not paid or are you not going to pay for the content?

If the answers to any of these questions is no, then all questions below it can be ignored because the transaction is NOT stealing and may be illegal in our crazy, mixed-up legal system but I believe that it is not wrong and should not be illegal.

To understand why that is in a world where the media carries the party line of the RIAA and MPIAA, where "Filesharing is stealing!!" is what is constantly taught by the "mainstream" culture, an examination of each question and why you should ask it is called for.


Question 1: "Is the content you are downloading basically a copy of a copyrighted work?"

New technologies give anyone at home resources to create things using only one computer that only people who spent millions of dollars on studio equipment used to be able to do. This new power that people have is not only over the creation of new works - it is just as easy or even easier to modify existing ones.

So imagine that I like a song but I decide I don't like the bridge or the last chorus. At that point in the song, I think it gets too loud for my tastes and I wish it would just leave that bit out. Imagine maybe that there's a curse word in the bridge but the rest of the song makes that seem totally out of context.

Back in the day, I could just turn the song off at that point, or I could fast-forward. That does kind of mess up the rhythm though.

Nowadays, I have more options. Using Acid Pro or some other software package, I could go in and simply remove the parts of the song that I don't like. I could use effects and so forth to avoid having a "pop" at the point where the part I removed is missing, and vwa-la, I've broken federal laws!

Also, I could go a step further and add in parts from other songs. I could take a piece from one song, a piece from another and turn it into a completely new creation of musical "collage art".

These kinds of derivative uses do not really constitute a copy in my opinion and therefore should not be governed by copyright law - at least not when they are non-commercial uses. Downloading songs that have been heavily modified by fans is not stealing anything from the recording artists: in fact, it helps them. The same goes for heavily modified video games or films or books or any other form of media.

If the content is being shared for free and it is not an exact copy, downloading it is not stealing from anyone.



Question 2: "Does the copyright owner insist on the "exclusive rights" that the copyright grants him or her?"

"Remember the Name" is the second track on Fort Minor's first album, "The Rising Tied". "Remember the Name" is copyrighted.

Yet, you can download it and you will not have broken any law at all.

This is because the copyright owner does not insist on all of the exclusive rights that the law currently allows him to o hire a lawyer or to threaten to hire a lawyer to defend. The song has been released under a Creative Commons liscense. By selecting this liscense, the copyright owner has made it clear to the whole world that they are free to download and share the song and also free to make any changes of any kind that they want to the song (The seperated studio tracks are also freely downloadable) as long as the use is non-commercial and as long as the new song gives people these same freedoms. There are different kinds of Creative Commons liscenses that copyright owners can select depending on the types of freedoms they want to grant and the restrictions they want to impose.

Creative Commons liscenses are only some of the many ways that copyright owners can /force/ the copyright laws to be reasonable and only demand the exclusive rights that they actually want. Most copyright owners do not need most of the exclusive rights that the law gives them - in fact, most copyright owners do not need any exclusive rights at all and do not even realize that they are owners, since registration for a copyright is not required for ownership and every creative work that is reduced to a concrete form is automatically copyrighted.

Walk down the street humming random notes and you might inspire someone to write a song. Then you can sue them for millions of dollars in damages for breaking copyright law because the law currently says that you automatically have a copyright on every note that you hum. Having no registration requirement for copyrights is really that absurd.

If the copyright owner does not INSIST on exclusive rights, then downloading their content is not stealing and should not be illegal.



Question 3: "Is the content you are downloading commercially availible for sale by the owner at the time you are downloading it?"

The vast majority of creative works have a very very short commercial life. When you buy a used book, the copyright owner gets nothing. When you download that same book, the copyright owner gets nothing.

I have nothing against used bookstore owners. They are entitled to sell their books. But they are not entitled to any exclusive rights to control copying or to any legal protection against people downloading their products, since they did not develop them and giving them exclusive rights does not promote progress. (which is the whole point of granting exclusive rights according to the Constitution)

Insisting on exclusive rights to content that is no longer commercially availible hinders progress. Distributing content promotes progress. Letting content become completely unavailible to everyone hinders progress.

Downloading content that is not commercially availible does not steal any profits from the owner because the owner is not selling the product anymore.

Therefore, if a work is not commercially availible for sale BY THE OWNER, then downloading that work is not stealing and should not be illegal.



Question 4: "Have you not paid or are you not going to pay for the content?"

I went to the store and bought a product called the "Command & Conquer Battle Chest". It was supposed to contain all of the Command & Conquer games released up to that time. It was about $15. The reason I bought it was to get the game "Red Alert 2" and the "Yuri's Revenge" expansion pack for that game.

I played the game for a while and was having a good time but then began to worry that the CD might get scratched if I spun it too much. So I decided to make a copy of the game discs and only actually play the game from the copies, while leaving the original discs somewhere where they would not get damaged.

There was (or there should have been) nothing illegal if I had been able to do this. It would have been illegal, but not morally wrong, for me to "crack" the game so that no CD was required at all, but I wasn't trying to do that at this point. I was just trying to make a backup copy, which is something that the law allows.

So I fired up Nero (a CD burning/copying program) and put the first disc in and told it to copy. I'd made copies of my own personal data discs before and I figured there should be no difference. But there was a difference.

It told me that it could not (or would not) make a copy because the disc had copy-protection on it. I tried a few ways of getting around the copy-protection and I could not. (Suggestions and links welcome!)

I was outraged! I paid for the computer, I paid for the software, I paid for the CD burner and I paid for the CD copying software. Everything that I had done and everything I was trying to do was something that I HAD PAID FOR. I had followed all the rules. Westwood (or whoever their distributor is) had STOLEN FROM ME the very thing that I HAD PAID FOR when I bought the game! (The right to play it)

I did put the discs in a safe place. I have the original CDs that I could show if anyone ever showed up questioning whether I owned a legal copy of the game. But I have never used them since that day. I own a legal copy but I do not play with a legal copy anymore.

I decided that rather than trying to circumvent the copy-protection myself and possibly risk damaging the original CDs (the opposite of the goal I originally set out to achieve) I would get some help from somebody else.

So the first thing I did was remove Red Alert 2 from my computer. Then, I went online and downloaded a warez version of the game, instealled that and now I play a "cracked" version of Red Alert 2 that is distributed illegally for free on the internet instead of the copy-protected version sold to me by Westwood. I could have simply downloaded the warez version without paying in the first place and saved myself some time, frustration and money but I originally didn't want to be stealing or to do anything illegal.

What happened here was: When I actually paid money, the game companies stole from me as a consumer the very thing that I paid my hard-earned money for. (The right to play Red Alert 2 until Hell freezes over, reguardless of what happens to the round bits of plastic that came in the box and reguardless of whether the company that made the software still supports it or not) and the only way to get what I had paid for was to do the same sort of thing they were doing to me right back at them.

What I originally wanted to do was NOT STEALING and I should not have had to do something illegal in order to get the value that I paid for. But I did have to, because many times the government and the copyright holders simply don't care about the consumer or any property rights that the legitimate customer should have when he or she buys a product.

I believe that the actual property right that the individual consumer has (or should have, if our copyright laws made sense) to any use of any kind within their own home of content that they have paid for is much more important than the abstract exclusive right to distribute copies that a copyright holder has and should have. Filesharing is used many times by these legitimate consumers to get exactly what they thought they had paid for but was stolen from them by the copyright owner. That kind of filesharing, under any circumstances, is right. Period.

Rosa Parks paid for her bus ticket. She should have been able to ride anywhere she wanted.