Ally McBeal, Esq.

Tonight on Court TV, a story ripped from the headlines…
12 Year Old Girl Settles Downloading Suit with RIAA.
So who was her lawyer? Tiny Freakin’ Tim? Ally McBeal?
The absurdity of the case, and RIAA’s Ebeneezer Scrooge impression aside, one thing is getting lost in the whole controversy over downloading music.
Downloading music without payment is theft, stealing other people’s work, and anybody who does it is a thief.

It’s theft because it is other people’s property. I don’t care how you valuate recorded music. You can call it the sum of the labor plus the raw materials; you can say it’s worth whatever price the market will bear; you can even try to value it based on its artistic worth. It doesn’t matter, it’s worth something, and if you take it without paying, you are stealing.
It pains me that so many (so-called) libertarians have this knee-jerk reaction against RIAA. “Sure I’m libertarian… I’m stickin’ it to the man by downloading music.”
This is a canard. It is axiomatic that respect for private property is one of the linchpins of a free society. When the government, or the people stop respecting the sanctity of private property, the bulwark, the core value we’re invested in, starts to erode.
And hell, if we libertarians can’t respect private property, why should the government?
Sure, the record industry charges too much for its products. You don’t like it? Don’t buy it. I don’t recall anything in the Constitution or the Magna Carta about the inalienable right to Linkin Park, or the Carmen Miranda warning. Really, if this is the best you can do, then please tell me why we shouldn’t be able to steal BMWs — after all, the dealers charge too much for them.
Of course you’ve always been allowed under copyright law to make a personal copy for yourself. It’s called the fair use doctrine. But here’s a newsflash: the personal copy is the one that the original purchaser of the CD puts on his computer in an MP3 file. It’s not a personal copy if you make copies for your friends, and it’s not a personal copy if you make copies for a thousand people you’ve never met. And it’s not a personal copy any more than a pirated movie, copied and distributed to 500 people around the globe, is a personal copy.
The fact that it’s intellectual property and not real property, is irrelevant. I’m a lawyer – my work product is all intellectual property. My time is worth money. If you were to take a brief I filed, copy it, and file it in your case, it would be theft. It doesn’t matter if my brief was publicly filed, taking the thing for your own use, without permission, would in effect be stealing my mind and my work.
So let’s hear it kids – bring it on. I’d love to hear some new arguments about why copying music and passing it around on distributed networks is legally and philosophically sound. Lord knows the ones I’ve heard so far aren’t convincing.



  1. Dave Gudeman

    Well, none of the above should be taken as my personal opinion, but there are two main reasons not to view violating copyright as theft. First, it seems the main reason that theft is unethical is that when you steal something physical, you deprive the owner of the physical object. When you steal someone’s car, the owner no longer has a car. By contrast, when you copy someone’s intellectual work, the person still has everything he had before. You haven’t deprived him of anything concrete.
    One could argue that you are depriving him of potential profit or some other abstract good, but this takes some arguing. When you start a business to compete with someone else you also deprive him of potential profit, and no libertarian would denounce that. You could argue that in this case you are using someone’s own work against him, but the same is sometimes true of business competetion: one enterprising individual can create a market where none existed before, and another individual can come along and appropriate the fruits of all that expense and hard work by starting a competing business after the market is mature.
    Second, there is the principle that if any use of force would be unethical for an individual to undertake (say in an anarchy), then there is a strong presumption that the corresponding use of force is unethical if engaged in by a government. For example if it is wrong for an individual to attack someone for engaging in sodomy, then there is a strong presumption that it is wrong for a government to so. Now consider an environment in which there are is no government and there are bards who go around telling stories for a living. Suppose Bard A invents a very popular story and later finds that Bard B is now repeating the same story and that it is reducing A’s income from the story. Would it be ethical for A to go beat the shit out of B? If your ethical intuition says “no”, then it should give you some doubts about intellectual property laws.
    So it isn’t at all obvious that violating intellectual property rights is unethical in the same way that theft of physical property is unethical. I think the primary defense of intellectual property laws is not based on property rights, but on overall social good. Society as a whole is better off if people create intellectual goods, and it is in society’s interest to promote this creation. Furthermore, the most capitalistic way to do this seems to be via intellectual property. However, this argument for intellectual property makes the ethics of stealing rather murkier. For example, if you believe that intellectual property laws have gone too far in favoring the owners of the property, then violating those laws can be a legitimate and ethical form of civil disobedience.

  2. Bruce

    So! A socialist chimes in! Nice work Dave. So, to please the socialists, we shoud just toss out copyrights and patent law and trade marks. There goes the incentives for creating new drugs. Or new manufacturing techniques. Or other new technologies.
    So you create a new computer that works on light, is a thousand faster than anything else, runs a cool as mountain stream; yet you cannot profit from your idea because it is only an idea and some one has stolen it from you and given it away to all comers.
    So why should anyone make the investment to create such a thing if they cannot re-coup the money lost in creating the idea?
    Our nation, as a capitalist system, is founded on the principle that one should be able to profit from ones intellectual captital. Ideas are precious. Ideas should not be free simply because they can be communicated easily.
    People who steal intellectual property are thieves. Pure and simple. There is no legitimacy to stealing the intellectual property of others. It is not a form of civil disobediance. It is theft. A person has spent time and effort to create something unique. It is an idea, a design, a song, a formula, a drug… They must be compensated. To say you will take their work and give nothing in return is to be a thief.
    If you do not like capitalism then go find some socialist coutry to live in… Oops, they don’t exist because they all went bankrupt! I wonder why? After all, they did not value intellectual property rights!

  3. thinker

    When I was much younger I taped music from the radio – then listened to my tapes. They were for my entertainment – selected tunes I had wanted to hear at my convenience because I had heard them in public arenas. Lyrics I can recite verbatim, melodies I can hum by heart. This is the soundtrack of my life – paid for by commercial and not-for-profit media. In wanting to replay ‘the original’ – rather than the recollection, I meant no harm to the creators and performers whom I cherish. Well now I find I can get digital quality versions of the music I just heard legally played on the radio – even music I’ve purchased or taped. Why, it’s like someone saying my prayers for me! Now I need someone to burn my calories. Where do I go for that?

  4. M. Simon

    Free music worked for the Grateful Dead. Were a bunch of aging hippies smarter than the “music” industry?

  5. John Anderson

    “Of course you’ve always been allowed under copyright law to make a personal copy for yourself.” Except RIAA and MPAA (and the TV networks, whose arguments were thrown out in 1982 but which they still trot out) don’t want to allow even that and are using the law to keep us from being able to make backups or, horrors, changing format from WAV to MP3 so we can take the copy to the beach…
    Yes, posting someone’s property for use without permission and an agreed-upon payment to the owner is theft. I see little difference between putting up the latest rapper’s album and posting the engineering reports for a 2006 car under development.
    Yet, just as Jack Valenti admitted using his VCR, I admit to an occasional download. My best example is of an MP3 someone made of a piano roll cut by Scott Joplin. There simply is no other way for me to find such items, even if the members of RIAA were to start online sales and distribution.

  6. Adam

    Y’know, that’s entirely true, about the property-rights side of it. On the other hand, the RIAA is being rather overzealous because they have their causes confused. They seem to think that they are losing money and sales because of mp3’s. Which is entirely false; they are losing money and sales because the current crop of artists sucks. Also, they’re busy looking for the next big hit, so everything sounds formulaic. Finally, they’re trying to squeeze most of their income out of the demographics group with the least disposable income.
    The problem for record companies isn’t actually mp3’s. Most people with dial-up connections download a song or two to see if the CD is worthwhile. Most people with cable or DSL have enough money to go out and get the CD – and among my friends at least, usually do. The reason a lot of my friends use file-sharing progs is to download mp3’s of hard-to-get acts from outside the states, esp. Black Metal from Scandinavia or European techno.
    Don’t get me wrong – I agree with you, sort of – but I think the RIAA is overreacting because they don’t understand the reasons behind their recent failures.

  7. Mike Matterson

    Would that 12 year old girl really have bought $2000 worth of CDs so that by downloading songs she caused a $2000 loss to the music industry? Was she herself profiting by selling her copies? Did she own no CDs? Do most downloaders own no CDs? We all know that’s not true. Can she listen to a given CD in full before buying it, at her convenience? No, she can’t. Can she return it if it sucks? No. Why not? If she buys a CD, does the musical artist get most of the money? No. Why not? Because of a now unnecessary middle man.
    Can I hire a chemist to make a big batch of Viagra for my friends and I? Why not? It may be technically illegal in some ways but not really morally wrong, no more so than our building our own sail boat copied from the design of one we couldn’t afford. As soon as we sell many such boat copies though, we are competing, and thus causing a loss of profit, and we can be sued.
    If I like a painting I see in a museum, take a picture of it and then make a copy for my own living room, am I breaking copyright law? Not really. If I try to sell the painting, I can be sued, but even then I’m not likely to be unless I sell dozens of them, publicly.
    In these examples, despite legal technicalities that might be argued, the real damage done to the inventor only arises when the person making copies is making a significant profit. Any estimate of “billions lost due to piracy,” is hypothetical and would have to be divided by 100 to really estimate real damages since people will likely download only one or two hit songs from each ten song CD, and do this for ten times as many artists as they would ever fork over money for.
    It is not correct to call copying “stealing.” You are in fact paying your own money to make a copy for personal use, just as you would have to buy a canvas and paints to copy an oil painting.
    A harm reduction argument is that like the prohibition of any consensual crime (where no participants would report it), the more they fight it so bluntly, the more it goes underground and the worse the problem becomes, and the less respect people have for moral arguments. Thus Napster -> Kaaza -> Earthstation5 (totally anonymous). Next would be to add a layer of unbreakable encryption, etc. You cannot stop it without creating a police state out of the consumer electronics hardware, which users will not want to pay for. Take away freedom and you cannot also ask for responsibility.

  8. Al Maviva

    So, if I live my life in abject penury, struggle and starve and eventually write a great book, and then you all come over to my house and make a copy, so as to avoid paying for it in the bookstore, nobody is hurt, right, and it’s just for you personal use? And it’s moral, right Mike?
    Hello… anybody here?