Megan McArdle has recently posted a couple of excellent blog posts (here and here) on The Atlantic on the subject of illegal downloading, and where on the spectrum from file-sharing to file-stealing it really sits.
This is, of course, a thorny problem – and one that excites a great deal of passion on either side. And although music and film have borne the brunt of the assault on their rights so far, books cannot be far behind. Certainly, one leading Spanish author has already quit writing in disgust once she realised that more of her books were being downloaded illegally than being bought.
But is this a cultural problem, masquerading as a technological problem, or a technological problem masquerading as a legal one? Sadly, it is probably all three.
In essence, like the law, the argument proceeds by analogy and precedent. To what extent is the unauthorised uploading and downloading of an album like theft – that is, like taking a physical product from a retailer’s premises without paying? Or, conversely, to what extent is it like copying it onto a cassette or CD for specific a friend to hear, or buying and selling it on the second-hand market? After all, all three activities could be said to deprive the artist of income, but only one is the subject of much debate.
I certainly never had the slightest qualm about swapping tapes with friends when I was younger, or about swapping copies of CDs or home-made compilations now. I think of it like swapping books – although of course it is materially different in that we retain first-hand copies of the products we swap. Still, I rationalise it as a promotional act, which it is, albeit on a heroically modest scale.
But the ground has shifted under my feet. Twenty years ago, if someone made me a tape that I liked, I would go out and buy the album – partly because the quality was so superior, and partly because I’m the sort of person who likes owning physical artifacts. Today, of course, any CD copy I am likely to be given of an artist’s work is likely to be indistinguishable in quality from an official copy and – once it has been imported into iTunes and its tangible existence discarded – indistinguishable in kind.
In legal terms, these are illicit acts, identical to file-sharing or piracy. But what distinguishes them from either is the issue of scale. This is where the argument by analogy and precedent breaks down, and where society and the law are failing to protect intellectual property rights. It is the speed and reach of the internet that makes file-sharing unprecedented, however much it resembles other activities.
Posting a copy of a CD onto the internet may, for you, the uploader, be the same as burning a CD for a friend. For the artist, it is the same as republishing it: just because you don’t make any money from its redistribution doesn’t mean your act isn’t piracy. (In that context, I wonder if genuine copyright pirates are as frustrated by torrent streams and file-sharing sites as the actual rights holders? In some respects, their business models are even more threatened by it than the licit ones.) Of course, some music bloggers require some kind of sign-up before you can download material, others only post material for brief windows of time to ensure that only keen followers of their blog can access it, so the problem is certainly acknowledged in the file-sharing community. But many more simply refuse to acknowledge that the problem exists.
It may in the end simply be true that people think file-sharing is acceptable because it is easy and they like doing it – whatever the legal status of the activity, there is negligible risk or downside, after all – and that the more ardent downloaders’ arguments against the monetary value of artists’ work (see McArdle’s pieces above) come after, as post-facto rationalisations, in the way that I justify mix-tapes and so on to myself.
Sadly, that certainly seems to me the most likely explanation of the phenomenon: people like getting things they want for free, and – absent a clearly defined social morality on the subject – are willing to find justifications for their actions to cast themselves and their behaviour in the best light possible. After all, if there were an ATM giving out more cash than it was debiting your account, would you walk on the next one to ensure that the bank didn’t suffer any unnecessary losses? You could, in some senses, define downloading as an abuse of power, reflecting a world in which, because the consumer is able to take things for free that they would otherwise pay for, they have no inhibitions about doing so. It’s not edifying; but human nature, by and large, isn’t.
I think the point about social morality or acceptability is an important one. The current copyright protections have grown up over centuries and in response to extremely slow-moving technological innovations. Prohibitions enshrined in law have had time to become accultured. We forget how recently this has happened: the first paperback edition of The Lord of the Rings in the United States was a pirated one, for instance.
To some extent, these prohibitions are still culturally specific too: inhibitions against the pirating of IP – in fields ranging from cinema to pharmaceuticals – are significantly weaker in China and the Far East. But the pace of technological change has been so swift that both society and the law have found it impossible to keep up. It may well be that, in ten years’ time, the concept of anonymity on the internet will be a fading memory and all data will, in any case, be stored in some future iteration of the cloud which will make the duplication of unlicensed material impossible.
Until then, the creative industries are facing a major problem. It’s not just about law enforcement, however. Underlying all this is the question of our relationship to artistic work – and what it means to own such a work – and what it feels like it means, which is not quite the same thing.
In some ways there are two kinds of ownership in play here. Obviously there is the legal sense of owning an authorised copy of a work – a book, say – and there is the emotional sense of ownership which derives from the experience of reading it, which doesn’t require legal ownership or, indeed, any transaction with the book’s author at all. Ownership means something, it has emotional as well as financial value, and the experience of reading a great book, makes it part of our lives too – it expands and deepens our identity, our sense of self – with the result that our ownership of it makes it feel more profoundly ours than the ownership of almost anything else.
But, paradoxically, despite the very personal nature of our relationship with creative work, that relationship is also a shared experience, or an experience that is capable of being shared – and, as such, a deeply human one – so the delight of sharing one’s own pleasure is closely intertwined with our understanding and experience of that pleasure. Sharing it communicates something about ourselves, because the work has become something of ourselves.
Moreover, despite the internet enabling governments and corporations to gain covert access to an unprecedented level of information about their citizens and customers, the internet still feels oddly like a private space. As Steve Jobs once said to Tim Berners-Lee: “It’s not about personal computing. It’s about interpersonal computing.”
For those who maintain music blogs, then, and who buy and listen to and feel passionately about a lot of music, the suggestion that they should not be able to share that love via the internet as they can via the loudspeakers in their house seems almost akin to a breach of their human rights. It isn’t; but I can understand how it might feel so.
Where does this all leave us? It seems to me unlikely that the law will act anytime soon to police the problem. The most effective way of doing so would be to make the ISPs liable for the content they carry, but in an environment in which one of the world’s leading technology businesses, Google, has a business model based on the appropriation of rights holders’ material, for which it is lauded by almost everyone – including our imbecilic prime minister for one – that is not going to happen.
Equally, you could argue that the marketplace is setting the value for these artists’ work – that is, it is functioning as a market should – and that value is zero. That is certainly one logical conclusion of the current situation and it is a depressing thought, although really downloading is – analogies again – more like a strange and twisted variant of the black market in which no money passes hands.
Realistically, however, I think we have to accept that the royalty-per-unit basis on which most livelihoods in the publishing and recording industries have been based for so long, is dead. Who knows what will come next. Perhaps in a couple of years, you will be reading this on my app, through which you can download books and other premium content or subscribe to blog feeds on specific threads. It’s not inconceivable.
But I doubt that digital content will be downloaded in the future: it will be a commodity locked up in the cloud, stored safely away from anyone who loves it so passionately they want to share it instantly with their closest friends. Ever had a book pressed into your hands by a friend as they tell you how fantastic it is and how much it changed their life? It’s a lovely, thrilling moment, charged with humanity and an intense sense of what it is to be alive, but I think it’s one our children are unlikely to experience.
The artists might well be richer in such a scenario; but I’m not sure we won’t all be the poorer for it too.