Re: in a quandry

[Wes Morgan <wesm at libretech_org>]

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On Monday 21 July 2003 4:26 pm, Don Smith wrote:
> Hi,
>
> I'm no legal scholar, so I certainly don't consider my musings on the
> subject authoritative, but this whole subject of "natural law" strikes me
> as untenable.

I think you guys are taking this "natural law" thing to too philosophical a 
level (not that I have anything (much) against philosophy). All I mean by 
that is something which is so obviously "there" that everyone takes notice 
and does it/uses it/whatever. For example, suppose they made a law that 
walking was illegal because it detracted from gas stations' profits. Well 
guess what, tons of people would do it anyway. Why? Because it is such a 
"natural" thing for people to do. And the other important aspect I'm trying 
to get at is this: when poeple walk it is not inherently a moral wrong. It is 
illegal because the law says it is, but w/o that law, it wouldn't be wrong 
(assuming you believe a law affects the moral status of something in and of 
itself). The same is true for copying music. It is so obviously "there" that 
people copy music for their friends all the time. With the Internet, they 
copy music for a bunch of other people. Granted, there are many people out 
there who are just trying to get something for free and are 
downloading/uploading massive amounts of music due to the same consumerist 
tendencies that the record companies try to instill in them in the first 
place. I'm not so naive to think that every Napster subscriber just wanted 
more art to study and pore over and enjoy to the fullest. However, the fact 
remains that many, many, people were and still are sharing their music online 
and offline. I would argue that sharing music is actually a moral good, all 
other things being equal, because art should be shared. Real, inspiring, 
great art (<- official OtR content) should be shared with as many people as 
possible. I dare you to find one true artist that disagrees.

Now, the law says that this sharing is illegal. But I would argue that outside 
of that law, sharing music is not an inherent moral wrong (just like 
walking). Not compensating the artist for their creation is at least 
unfortunate, if not a moral wrong (remember, we're talking in absence of the 
applicable laws). It would probably depend on whether or not the artist 
wanted to be compensated. But, let's assume they do because hey, you get to 
do what you love and still eat, the American dream right? :) So, what I've 
been arguing is that it is possible (at least in theory) to imagine a system 
in which people were permitted to share their music and at the same time has 
a formal structure in place to compensate the artist. We can discuss specific 
ideas about how that would work in another thread (or off the list), so I'll 
not go into that right now. OK, moving on, phew... :)

> I don't really care whether or not people "consider"
> themselves criminals; the issue is whether what they're doing is wrong. 
> There are lots of CEOs out there who don't consider themselves criminals,
> regardless of how many lives they've wrecked in pursuit of unfettered
> profits.  Heck, I bet Hitler didn't think he was a criminal (whoops! 
> Godwin's Law alert!  Ah-ooo-ga!  Ah-ooo-ga!  Dive! Dive!).  That doesn't
> seem to me to be a useful criterion for evaluating morality.

I agree 100% here. I didn't mean to imply that I was judging the moral 
rightness or wrongness based on whether or not people considered themselves 
criminals. I was simply responding to (my misunderstanding of) what John 
said. I was merely saying that I don't think these people would be 
indifferent to the fact that they were considered criminals (i.e. they have 
some moral sensitivity and don't just wantonly break the law at the drop of a 
hat).

>  Let's get
> back to your argument about natural law.  You say an apple can't be copied,
> more apples must be grown to replace them, so to take an apple is theft. 
> I'm not sure "can be copied" really legitimately implies "copying is a
> natural law", but I'll go with it for now.

You're right, it doesn't. But "can be so ridiculously easily copied and is 
really fun to copy and in copying shares good art with many others" I think 
does imply "copying is a natural law" according to my rather pragmatic 
explanation of "natural law" above. But thanks for going with it, it's more 
fun that way. ;-)

>  I don't think you're paying for
> 1s and 0s, you're paying for the right to listen to a song at your
> convenience. Bootlegs notwithstanding, performers and venues have a right
> to expect compensation for their work in providing you with a chance for
> entertainment and/or inspiration.  Copyright law (as I understand it) was
> originally put into place so that someone who had an idea could be
> protected from someone else who might not have an idea, but had the
> machinery to exploit that idea before the first person can capitalize on
> it.

I don't consider sharing art with my friends and family (and yes maybe quite a 
few others online) to be "exploiting" an idea. I'm not saying that's what you 
were accusing me of, I'm just clarifying in case.

>  It doesn't always work, like when Paramount asked Joe Straczynski tons
> of questions about how his proposed space station show would work, and then
> said "sorry, we're doing our own space station show", and when Mr.
> Straczynski finally did get the funding to do Babylon 5, lots of people
> ironically labelled it a Deep Space Nine ripoff.  But I digress...

Ah yes, those big corporations up to their usual antics. It's funny how they 
don't really have to obey these laws, and yet they can sue us when we 
don't... hmm... really makes ya think... ;-)

>
> The ultimate question here is, I think, "do you as the owner of something
> have the right to control something you've sold to someone".  My
> understanding is that technically when you buy a CD, you are buying the
> right to *listen* to it, *not* the right to copy it (beyond the rules of
> fair use).  You've bought the ones and zeros, you have *not* bought the
> song.  That is the contract you are entering into when you purchase music. 
> It's like buying land but not buying the mining rights to whatever might
> happen to be under that land.  Perhaps not intuitive, but that's the legal
> contract.  So the people who are "only sharing" are actually in breach of
> contract.  That's how I understand the legal argument (see my disclaimer in
> the first sentence.).  That actually makes sense to me, oddly enough.

That's exactly right. That's how the laws work today (according to my 
understanding as well, which may be limited to downright wrong). I'm arguing 
that these laws are in violation of the natural moral good of sharing art. 
But since the laws are in place, I obey them as a matter of my own ethics. 
However, I find that obeying them to the full extent often requires that I do 
very weird and/or mean things or that I refrain from doing very natural 
and/or good things. That bothers me because I want to be a normal, nice guy. 
So, I work to bring these laws down through legal means and replace them with 
something that both respects the fact of and moral good of sharing music and 
compensates the creators of that music.
 
> There are some artists who put their stuff freely on the web for all to
> download, there are others who choose not to do that.  That's their choice
> and they are under no obligation to choose one way or the other.  If you
> don't want to enter into that contract, you every right to choose not to,
> but then you don't get the music.

Right, and I think it's fine if artists want to do that. I'm probably not 
going to buy their music once I have a choice (boycotting all that music is 
not worth it to me, I need the art or I'll shrivel up). I'm arguing for an 
alternative to that system. There isn't much in place yet, but things are 
starting to happen. See Opsound (http://www.opsound.org) for instance. The 
way things are right now, artists either don't know they can do it 
differently or they feel they couldn't support themselves doing it 
differently (and right now they're probably right). So, I don't blame them 
for that. However, I have reached the unfortunate conclusion that I cannot 
buy something from them if part of my money also goes to the RIAA. But I do 
want to support these artists.

>
> The next question is whether a corporation can (or should) hold a
> copyright. There are many reasons why it might be better for an artist to
> have a corporation hold the ownership of the art.  If there is a lawsuit,
> for example, the corporation is the plaintiff, not the artist, and thus the
> artist is under less liability.  If the artist goes bankrupt, the
> corporation still retains ownership of the art.  On the other hand, one
> could argue that the corporation did not create the art, and thus has no
> moral authority to dictate what to do with the art.  Of course, by that
> argument, I could steal paintings from your house as long as you didn't
> actually paint them, because they're not really yours.  You just bought
> them.  But in buying a CD, you are not buying ownership of the song, unlike
> when Michael Jackson bought all of Paul McCartney's songs.

Under this alternative system I'm envisioning, there could still be 
organizations that represent artists in various ways. The major difference 
I'm arguing for is that the artist gets pretty much all of their CD sales 
profits. They made the music, they should get the lion's share of the 
revenue. They currently do not, and that is the main reason I do not support 
the RIAA. (Note again that I also do not download artists' music, I try to 
support them financially in other ways.)

>
> I think the real problem is that government deregulation has led to massive
> media consolidation and megamergers.  If there were lots of little
> RIAA-type organizations, artists could choose which ones to go to, and thus
> competition would drive the market into terms more favorable to artists. 
> But with the government not enforcing anti-trust laws, the artists get
> screwed over by the people who control the reins of distribution, and they
> have nowhere else to go. Witness Pearl Jam's failed attempt to break the
> stranglehold of Ticketmaster. And this was one of the biggest bands at the
> time.  What's a little band with no fan base to speak of to do?  There are
> very cool acts like Eddie From Ohio, Jim's Big Ego, and The Nields who keep
> plugging away at trying to build their own fan base to a point where they
> can make a stable living, and others like Ani who start their own empire,
> but most are caught up in the vortex of "The Industry" or at least its
> myth.

I couldn't agree more. But I think that your "real problem" is actually a 
symptom of my "real problem" because the record companies realized long ago 
(I'm paraphrasing Courtney Love from her transcribed speech in Salon a few 
years back: "Courtney Love Does the Math") that their profits would be 
maximized if they gained a tighter and tighter reign on the distribution of a 
commodity. Treating the music as art and the musician(s) as artist(s) was 
counter-productive. Once you have a formula like this, any free market 
enterprise is going to maximize their profit. In this case, the road to 
profit maximization meant consolidation and this greater control of 
distribution. This means they absolutely cannot tolerate free distribution on 
the Internet (or anywhere else), even though it's better from an artistic 
point of view, even though the artist *could* still be compensated, and 
regardless of what the artists themselves actually think about the situation.

>
> So is copying music an act of civil disobediance to try to chip away at the
> wall of corporate control?

It shouldn't be, IMHO.

> Or is it simply unethical laziness to save a
> buck while still getting what you want?

I hope not, but often, I fear, yes.

> I don't know.  I'm completely
> talking out of my butt here.  :-)

Hey! Me too! :)

> I would love to see the media
> conglomerates crumble a la Fight Club, but my approach is to buy from
> people I know.  And as far as your quandry goes, my suspicion is that a
> boycott of OtR's stuff would barely cause a blip on RIAA's radar.

I'm not boycotting OtR, I'm boycotting the RIAA. I don't send them money 
through *any* conduit. OtR's albums when purchased through normal means 
(maybe any means, I don't know) unfortunately send them money, so I don't buy 
new copies of OtR albums (among many other groups). I do, however, go see 
them live any chance I get, I order other merch from their website and at 
shows, and I tell others to check them out who are not boycotting the RIAA, 
and I most definitely do not download or copy their albums without 
compensating them (I don't know how they'd feel about being mailed a check 
after making a copy or downloading mp3s, so I probably won't do that either).

>  Now, if
> everybody suddenly stopped buying Eminem or ... I don't even know who's in
> the top 40 these days ... I'm sure the loss of that income would loom much
> larger in their sights than our favorite band from Ohio.

If people stopped buying the stuff in the "top 40" a lot of good things would 
happen. Wow, we wouldn't be far from world peace if *that* happened. I think 
I'm gonna cry... ;-)

>
> Gack! I'm late for rehearsal!  See ya!

Thanks, Don, for indulging me on a topic I'm possibly a little *too* 
passionate about. And thanks, fellow listees, for letting me pollute your 
mailboxes with my rantings. :) I'll be quiet now (until the next reply in 
this thread). hehe...

Wes Morgan

- -- 
"We need to consider the reality of what God wants and how broken the world 
is, and the gap between them, and let a healthy discontent take over our 
souls so that we say, by God's grace and power, I will not quit because it 
matters. It matters." - Roberta Hestenes
- ----------------------------------
Libretech.org - Technology Is Free (http://www.libretech.org)
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