Ethical to download pirated music?

[DavidOdden]

For downloading music the chances of getting caught are perhaps one in ten million?

They are probably about the same as for shoplifting. Shoplifting is theft, unlawful downloading is theft. Actually, laws against electro-theft are in principle quite enforceable, the main impediment having been the impotence of the courts and a certain level of apathy by vendors. This is changing, though; and even if it were not, you are perverting the concept of theft if you think that failure to enforce negates the fact that you are stealing when you copy without permission.

[hunterrose]

I'm really puzzled at this.

I think I really puzzled myself but let me make what little sense I can out of my sleep-deprived point.

Theft is taking something from an owner, without permission, with the intent to keep. Copyright infringement is exactly this: taking, no permission, and keeping.

But copyright infringement doesn't necessarily involve taking something from the copyright owner, does it (e.g. if a purchased CD is illegally duplicated?)

At any rate,

...unauthorized reproduction and distribution is often referred to as piracy or theft. The legal basis for this usage dates from the [1879] era, and has been consistently applied until the present time.

In Dowling v. United States (1985), the U.S. Supreme Court held that copyright infringement does not "easily equate" to theft and unauthorized copies are not stolen property.

Critics [consider] the use of "software piracy" to describe such practices ... legally misleading.

there is some basis for not considering it "theft." And since I'm regularly told that precise definitions are of the utmost importance, it would be indecent of me to not follow that precedent. Or something.

When you buy a CD, you do not buy the music. You buy the disc, and you buy a limited license to the music.

Why do you say such a buyer does not [own] his copy of the music?

(I think) my point in arguing what was being bought was more that buying music is not a license (IMO.) I agree that buying a CD isn't a purchase of the "copy rights," but licensees don't have rights per se, but contractual agreements. A license can be legally broken, whereas purchasing indicates some rights (though not copy rights) that extend beyond the purchasing/licensing agreement e.g. the right to resell the CD.

"In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: [lists the conditions]."... these are called "reversionary rights."

"Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant." In other words, reversionary rights can not be waived. Even if you and I wanted to agree to waive them, it would have zero legal effect.

Now this took me some time to decipher, and I'm still not sure I understand the whole thing correctly

I understand reversionary rights to be the right a copyright owner has to his copyrighted material after a licensing agreement is over (or defaulted on.) If a person has reversionary rights, then those rights revert back to him at the conclusion of the licensing.

I suspect the use of "grant" (and "license") denotes that this law/statute applies to licensing, instead of purchasing. I'm not quite sure that buying a copyrighted material (not the copyrights themselves) is a licensing act, but if it is then I have to agree with much of what you and others have said.

Additionally, I think that the quoted sentence in the second paragraph is regarding the capacity to break contracts/licensing regardless of contrary statements by the licensee/licensor, not reversionary rights proper. Technical legal-y matters aren't my forte though, so I don't stand too firmly by much I've said here. I got some of my info from here.

[DavidOdden]

At any rate,there is some basis for not considering it "theft." And since I'm regularly told that precise definitions are of the utmost importance, it would be indecent of me to not follow that precedent.

There's no question that the courts have been in error more than once, and this would be a good example. The plain meaning of "theft" doesn't change by court decision. The court is really attacking the property status of intellectual property her, citing offensive aspects of contemporary copyright law in particular the "fair use" doctrine. The court is basically saying that in the US, we do not recognise copyright as a form of intellectual property, rather, it is a conditional boon from the government, and as such not a property right. A more straightforward holding on their part would have been that copyrighted material is not property so cannot be subject to "theft". The majority of the decision is obsessed with an interpretation of "legislative intent" pertaining to 18 U.S.C. 2314 and how Congress "did not intend" copyright when speaking of theft. Insofar as the federal courts do not hear cases regarding ordinary theft which are a matter of state jurisdiction, this decision particularly relates to a special federal statute, which the court feels is "really" about car theft and "roving criminals". Finally, the court does not hold that theft of copyrighted material is not theft, but rather finds that the unclear language of 18 U.S.C. 2314 does not clearly and explicitly identify theft of copyrighted materials as theft under that particular law.

There is no question that misuse of words does lead to confusion, and if you were laboring under the delusion that the court had rightly concluded that theft of copyrighted material is not theft, it is hard to blame you. My advice when deal with legal decisions is to remember that most justices specialise in twisting word meanings, especially with devices of the type "under the meaning of 18 U.S.C. 2314". Under the law, words are redefinable at will.

[Qwertz]

(I think) my point in arguing what was being bought was more that buying music is not a license (IMO.) I agree that buying a CD isn't a purchase of the "copy rights," but licensees don't have rights per se, but contractual agreements. A license can be legally broken, whereas purchasing indicates some rights (though not copy rights) that extend beyond the purchasing/licensing agreement e.g. the right to resell the CD.

Open up a CD and read the license agreement. The license agreement is a contractual agreement, but it is also a grant of specific rights. That's what a license agreement is: a limited grant of rights. It is true a license can be legally dissolved, but only under certain mutually-agreed-upon terms outlined in the agreement. The right to resell is one of the rights granted by the license. I guess the confusion arises when you consider that an unqualified use of the word 'purchase' usually refers to a whole purchase of property, while a license refers to the purchase of limited rights of use of property: ownership of the actual property (the music itself) is retained by the author or publisher - a license includes whole ownership of the physical medium, and limited use rights of the music therein contained - you're actually not allowed to take your CD to a nightclub and have the DJ play it - your license does not include public performance rights. Even if you donate the CD itself to the nightclub, the license included with the CD doesn't include the right of public performance. Those rights, along with sync rights (for movie or TV use), music video rights, radio rights, sheet music rights, karaoke rights, library loan rights and a whole slew of other more technical and specific rights are all sold seperately and at different prices. For example, the copies of DVDs purchased by rental stores like Blockbuster or Hollywood Video are much more expensive than the copies you see on the shelf at Best Buy because they include the right to lend the copy for a fee. Your purchase of the physical medium containing the music indicates your acceptance of the license agreement thereto attached. If you decide you are not going to abide by the terms of that sale, you vacate the agreement and retain no rights whatsoever, even though you may physically posess the medium. In this case, you posess something to which you have no right, and even a physical, tangible real-property theft is obvious.

-Q

[hunterrose]

There's no question that the courts have been in error more than once, and this would be a good example. The plain meaning of "theft" doesn't change by court decision.

There is no question that misuse of words does lead to confusion, and if you were laboring under the delusion that the court had rightly concluded that theft of copyrighted material is not theft, it is hard to blame you.

Er... thank you for understanding?

I haven't read the actual decision; perhaps I should. At any rate, an attempt to separate copyright infringement from theft is not necessarily an attempt to separate IP from property or infringement from crime. Theft, after all, is not the only property crime.

I've found a couple of other relevant court cases, but I presume they are not particularly relevant points either, so I'll make a case myself.

To (mis?)appropriate your usage, theft constitutes

• taking something...
  
• from its owner...
  
• without permission
  

If the idea is a redefinition, then what is being taken from the owner in the case of copyright infringement?

It is true a license can be legally dissolved, but only under certain mutually-agreed-upon terms outlined in the agreement. The right to resell is one of the rights granted by the license.

But the breaking of a license isn't limited to the terms of the agreement. If I rent out a house, the license's stipulations aren't the only means of me getting back my house for new purposes. A license can't be an unbreakable hold on one's own property; there has to be a means to get back total control regardless of the dissolution terms. I could go to court and legally get back my space, likely after having paid rentee compensation. A purchase (correctly) has no such mechanism.

If a bought CD is a licensed product, then can the copyright owners void the license through a legal means? If it is a licensed product, then shouldn't the licensee be able to decide whether he wishes to license resell rights or not? Can they go to court and legally prevent the CD's possessor from exercising the privileges granted under the contract against his will? [Groovenstein made an interesting case that copyright owners can do something of the sort (I think,) but I'm not completely in agreement with that yet.]

I think that a person buying a CD is buying (not licensing) certain usage rights, and, being purchased, that they cannot be negated by a legal process and compensation. A copyright owner can add a license similar to software EULAs, but these are separate things from the copyright itself. Such an added license can make the product licensed, but I don't think the copyright by itself does.

[Groovenstein]

If a bought CD is a licensed product, then can the copyright owners void the license through a legal means? . . . [Groovenstein made an interesting case that copyright owners can do something of the sort (I think,) but I'm not completely in agreement with that yet.]

I don't know if a bought CD is a licensed product under the Copyright Act. It seems a little silly to think that someone could take back the rights to a CD that you purchased (though it also seems silly to think that someone could take back their rights regardless of an agreement to the contrary, but anyway). Perhaps the copyright owner could take it back under the literal language of the statute. Are they ever going to do that, though? Seems unlikely, but I'll poke around when I can and see if I can find any cases on point.

Since you indicated you didn't quite get the statutory language I provided, I'll try to break it down. Link to 203.

203(a) states: "In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions . . . ." Here's the basic idea: The grant of a transfer or license of any right under a copyright is subject to termination.

Some details:

[Edit: "Transfer of copyright ownership" is defined in 101. It does not include nonexclusive licenses. However, 203(a) says "transfer or license" (emphasis mine) which would seem to include nonexclusive licenses.]

"Other than a work made for hire" excludes from this section any work made for hire. A "work made for hire" is defined in section 101 of the Copyright Act. [statutes have definition sections, typically towards the beginning. You always have to check these.] The definition of work for hire is a bit much for this post.

"Exclusive or nonexclusive grant" is easy enough.

"Executed by the author on or after January, 1, 1978, otherwise than by will" has a couple things going on. "Executed by the author" is a reference to section 204(a), which generally requires a transfer of copyright to be in a writing signed by the author. "Otherwise than by will" excludes from this section a work where the transfer or grant was made by will. "On or after January 1, 1978" is a reference to the effective date of the Act. It's the 1976 Copyright Act which applies only to works created (basically) starting January 1, 1978.

"Any right under a copyright" refers to the fact that a copyright is in reality many rights. See section 106.

203(a)(5) states: "Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant." The basic idea: An agreement not to terminate a transfer is legally worthless.

Another section relevant to the issue at hand is 109, which discusses the "effect of transfer of particular copy or phonorecord", i.e. what happens when you get rid of your copy of something. I'm not as familiar with this section as I am with some others, so to discuss anything beyond the very basics of it will take a little more time.

[Edit: It would also be good to check the Code of Federal Regulations. I'll do that if/when I feel like digging through them.]

Edited February 5, 2006 by Groovenstein

[DavidOdden]

Open up a CD and read the license agreement.

I may be missing something, or maybe hanging out in the wrong circles, but I opened a dozen music CDs of mine and I cannot find one with a license agreement. They usually do have the "copying is illegal" notice and a few of them state that the manufacturer has a license from the artist to produce the CD (they have a license to copy), but otherwise I cannot find anything that resembles a license agreement on music. Maybe I don't have the right kind of music? This is different from program CDs which do have obvious license agreements.

I guess the confusion arises when you consider that an unqualified use of the word 'purchase' usually refers to a whole purchase of property, while a license refers to the purchase of limited rights of use of property: ownership of the actual property (the music itself) is retained by the author or publisher - a license includes whole ownership of the physical medium, and limited use rights of the music therein contained - you're actually not allowed to take your CD to a nightclub and have the DJ play it - your license does not include public performance rights.

That is actually covered by copyright law, and not a separate license. 17 USC 106 gives the copyright owner the exclusive right to authorize a public performance (and does not give the owner any right to authorize or prohibit a private performance). 202 says that ownership of the copyright is distinct from ownership of the material object. Together, this means that when the artist has authorised a copy to be created, except for the case of a public performance he has no further right to that particular copy, hence any public performance must be separately licensed.

[hunterrose]

I don't know if a bought CD is a licensed product under the Copyright Act.

Are they ever going to [seek to regain usage rights], though? Seems unlikely, but I'll poke around when I can and see if I can find any cases on point.

Well, I know that some copyright owners have been adamantly against resell rights, and my thought is that if resell rights were licensed (as opposed to sold,) then the copyright owners could dissolve those rights by dissolving the license. Since this would mean dissolving the whole license, and not merely an unfavorable part, it probably would be uncommon.

It seems a little silly to think that someone could take back the rights to a CD that you purchased (though it also seems silly to think that someone could take back their rights regardless of an agreement to the contrary, but anyway).

I haven't fully grasped all of the elements, but I'm considering licensing as a type of contract. IMO a contract has to be breakable (with compensation) in at least some instances (e.g. upholding the contract will lead to one's own death.) I suspect (but haven't connected the dots) that the underlying principle there is related to the idea of a licensor having the legal right to effect a dissolution of the license in most cases.

I'll try to break [the referenced part of the Copyright Act] down.

The grant of a transfer or license of any right under a copyright is subject to termination.

An agreement not to terminate a transfer is legally worthless.

I don't know if a bought CD is a licensed product under the Copyright Act.

I guess I understand it, but can "grant" here refer to a purchase of rights? I'm leaning toward no; if it did, then an original copyright owner could revert any sale of rights whenever he so chose, and a "purchase" of rights would be a purchase in name only. If the idea of resell rights is legit, then said rights would IMO have to be purchased, as well as any other rights that aren't revocable at the will of the copyright owner and court intervention.

[DavidOdden]

Well, I know that some copyright owners have been adamantly against resell rights, and my thought is that if resell rights were licensed (as opposed to sold,) then the copyright owners could dissolve those rights by dissolving the license. Since this would mean dissolving the whole license, and not merely an unfavorable part, it probably would be uncommon.

Software is frequently licensed rather than sold (music is AFAIK always sold, at least in ordinary CD form). That license can include a prohibition of transfer, even of the physical medium, and I used to have a hyper-costly now defunct stats package that prohibited any form of transfer (in contrast, the Adobe license states that I have purchased the right to use the product I have, and that right may be transferred as long as it is transferred in toto). The license does not have to be revoked, it simply has to be stated in the terms of the license that you cannot sell or transfer the licensed.

[dark_unicorn]

Greetings to all of you here on the forum, I'm a bit new here and I wanted to inject a couple of specific hypothetical situations into this conversation that might make it a little more intellectual and a little less boring. First of all I'd like to state that I am an aspiring recording artist (among a few other things) and as such I am a strong advocate of property rights, specifically intellectual property rights. However, I believe that some whom wish to regulate the internet more strictly because of the phenomena of file sharing are going too far and actually meddling in the rights of intellectual property owners to dispose of their property as they see fit to. To further explain my position, I will now present my hypothetical.

1. Let's say that I am an independent artist who wishes to mass produce my intellectual product by disposing of some capital gained through labors in other fields. As such, I have decided that I will make 1 or 2 complete songs from my self-produced album available visa ve file sharing to aid in advertizing for selling this album over the internet (some artists like Dragonforce already do this). Now, the recording industry does not like the fact that I am circumventing their right to determine that only artists signed with them can mass-communicate and profit from their musical creations, so they use the fact that many people steal property from signed artists as an excuse to ban all file sharing, and thus criminalizing my actions which have nothing to do with intellectual theft (this is similar to the way the Anti-trust laws work). What are your opinions on this senario?

2. Let's say that I am a person who wishes to have a little more info about a particular musical album because I like to know whether I'm going to waste my money by purchasing something that is not being advertized truthfully. The album gets rave reviews and short-sound samples are available at the FYE store before I purchase the album, but unfortunately I am unable to determine whether or not the album is worth what it is priced at because I don't have enough information. I then decide to download some of the songs in their entirety in order to get a clearer picture of what the album is worth, I either discover that the album isn't worth the CD is printed on and don't buy it and subsequently delete all the files I downloaded without sharing them with anyone else, or I find that the album is excellent, I purchase the album and then delete all the files I downloaded without sharing them with anyone. I personally don't see this as being theft since all I did was utilize a method of gaining information to make a decision on how to dispose of my property (my money earned while at work). Am I wrong in my views on this? And if so, where am I going wrong?

Note: The second senario is actually how I researched and ultimately decided not to buy Metallica's St. Anger. In addition to the obvious principle of not wishing to steal and perpetuate further theft of Lars', James' and Kirk's intellectual property, I was also motivated by the principle of not helping to perpetuate the mass communication of musical excrement when I did not share these files with anyone else and immediately deleted them from my computer before my gag reflex kicked in and caused my computer to be steeped in vomit.

[Groovenstein]

I'm a bit new here and I wanted to inject a couple of specific hypothetical situations into this conversation that might make it a little more intellectual and a little less boring.

I'm glad you think so highly of us.

1. Let's say . . . . Now, the recording industry does not like the fact that I am circumventing their right to determine that only artists signed with them can mass-communicate and profit from their musical creations, so they use the fact that many people steal property from signed artists as an excuse to ban all file sharing, and thus criminalizing my actions which have nothing to do with intellectual theft (this is similar to the way the Anti-trust laws work).

What evidence do you have that the recording industry's public position on file-sharing is a pretext to keep the indie artist down?

Let's say that I am a person who wishes to have a little more info about a particular musical album because I like to know whether I'm going to waste my money by purchasing something that is not being advertized truthfully. . . . I am unable to determine whether or not the album is worth what it is priced at because I don't have enough information. I then decide to download some of the songs in their entirety . . . . I personally don't see this as being theft since all I did was utilize a method of gaining information to make a decision on how to dispose of my property (my money earned while at work).

If you downloaded the material without the artist's permission, then that's the end of the matter absent a legitimate fair use exception (which this is not). You have a right only to the information they wish to provide to you. Stealing to get information is still stealing. If you don't have enough information, then you need to decide whether purchasing on the terms offered is a risk you want to take. Just plug in something like a car to your hypothetical and ask yourself whether that makes sense (e.g. you take the dealer's offered test drive, but can't decide on that, so you go back later that night and take it for a spin when they're closed).

[Proverb]

If you don't have enough information, then you need to decide whether purchasing on the terms offered is a risk you want to take. Just plug in something like a car to your hypothetical and ask yourself whether that makes sense (e.g. you take the dealer's offered test drive, but can't decide on that, so you go back later that night and take it for a spin when they're closed).

I laughed when I read this. Very nice. I will probably use that analogy in the future.

[Hal]

When a person owns something and you take it from them without their permission, do you have another word to describe it other than "theft"? Theft is not defined in terms of "tangible loss".

When I download a file, I'm not 'taking' it from the producer - I'm taking it from the computer I download it from. The word 'take' in the context you use it implies tangible loss.

I buy a CD, I make a copy and give it to my friend. He has taken the CD and music from me, not the producer.

Edited February 6, 2006 by Hal

[DavidOdden]

When I download a file, I'm not 'taking' it from the producer - I'm taking it from the computer I download it from. The word 'take' in the context you use it implies tangible loss.

The owner of the copyright owns the exclusive right to authorize the creation of copies. You are stealing that right from him, in claiming that to also have the right to authorize creation of copies of the work that you have no right to.

[dark_unicorn]

I'm glad you think so highly of us.

This was directed specifically at the person whom started this topic, not those whom responded to him, or the forum in general. I specifically was referencing the comments of one of the first responders when I used the term "boring" to denote that this thread was started by a person who was constantly blanking out his premises rather than being forthcoming. I apologize for a lack of clarity in my post, it was not my intention to deride you or anyone else here.

What evidence do you have that the recording industry's public position on file-sharing is a pretext to keep the indie artist down?

To start off with my band is not what you would qualify as indie, we mostly fall into the power metal genre which has a strong following in Japan and alot of Europe (I have a feeling it may catch on here soon). The recording industry's pretext is to maintain their dominance in the field of music recording by any means neccesary( which is their right of course), and mine is to make my fortune without need of their assistance, but when a government such as ours is in the business of unneccesarily regulating communication mediums (such as radio and television), the result is that competition is squashed in the name of proping up bad business (though they would call it preserving capitalism).

I will state for the record that I am not a person who compromises when it comes to art, so if I am presented with a deal from the recording industry, I would need to be given 100% full creative freedom. That almost never happens until after spending a few years whoring yourself to the wishes of the guys running the show. I am tempted to make an allusion to The Fountainhead but I don't want this to go off-topic so I'll save that for a separate discussion.

My only real evidence of my suspicions in this matter is circumstancial in nature, and that is the current music scene. Music is not measured in terms of greatness, it is measured in terms of how depraved the subject matter is (rap), or how incongruous the lyrics are (nu-metal), or how minimalistic the music is (Pop). Like all products sold on the market, low quality music goods sold at a high price with no alternatives is a sign that somebody is benefiting from a contradictory form of law enforcement.

On a side note, would anyone consider today's music scene Romantic?

If you downloaded the material without the artist's permission, then that's the end of the matter absent a legitimate fair use exception (which this is not). You have a right only to the information they wish to provide to you. Stealing to get information is still stealing. If you don't have enough information, then you need to decide whether purchasing on the terms offered is a risk you want to take. Just plug in something like a car to your hypothetical and ask yourself whether that makes sense (e.g. you take the dealer's offered test drive, but can't decide on that, so you go back later that night and take it for a spin when they're closed).

Hmmm, you do raise a good point here. Would the situation change if I instead decided to borrow a friend's copy of the CD and listened to it all the way through before choosing whether or not to buy my own copy. I guess this would be the equivolent of borrowing my friend's car, which is of the same make, in order to reach a decision. Would this change the moral implications of my information gathering methods?

P.S. - Most of the music I download is from the home sites of the bands, which would mean I have their permission. I have made the occasional exception for bands such as Metallica, but obviously there are other ways to get the extra information needed so it's probably not neccesary for me to do it. I canceled my membership with Kazaa about a year ago and have had little interest in restarting it. This was more of a way to test what premises I had at the time and whether or not they are correct. My gut would ordinarily tell me to steer clear of those whom keep information away from customers in order to push over a lousy product, and it hasn't let me down yet.

[Groovenstein]

The recording industry's pretext is to maintain their dominance in the field of music recording by any means neccesary( which is their right of course)

I assume you mean by any legitimate means necessary? If so, it's helpful to say that. If not, why not?

and mine is to make my fortune without need of their assistance

This isn't accurate either. You don't have a right to not need someone. You have (or should have) a right to not associate with them, which is different.

but when a government such as ours is in the business of unneccesarily regulating communication mediums (such as radio and television), the result is that competition is squashed in the name of proping up bad business (though they would call it preserving capitalism).

Can you be more precise? I'm not sure if you're referring to the FCC, recent court treatment of file-sharing programs, or what.

Would the situation change if I instead decided to borrow a friend's copy of the CD and listened to it all the way through before choosing whether or not to buy my own copy. I guess this would be the equivolent of borrowing my friend's car, which is of the same make, in order to reach a decision. Would this change the moral implications of my information gathering methods?

Assuming your friend acquired the music legally, then you're in the clear. He can do what he wants with his particular copy. Where you enter the wrong is in the making of a copy (which happens when you download).

My gut would ordinarily tell me to steer clear of those whom keep information away from customers in order to push over a lousy product, and it hasn't let me down yet.

My gut tells me to steer clear of Taco Bell. But seriously, if you want to steer clear of bands, record companies, whatever, that's fine. However, that does not translate into a license to take. You accept their terms or you do not.

[As a side issue, I don't have a problem with people just putting up clips. I don't know technical things, but maybe that helps prevent one source of theft, or maybe it's an effective sales technique (people hear some and then want to hear more so they buy).]

[DavidOdden]

I will state for the record that I am not a person who compromises when it comes to art, so if I am presented with a deal from the recording industry, I would need to be given 100% full creative freedom.

I respect that position. At the same time, I presume that you respect the position of a producer who is unwilling to take a guaranteed loss. This means you have three reasonable choices: (1) compromise minimally (2) persuade the producer that no compromise is required to guarantee a decent profit (3) self-produce. (1) is clearly impossible for you; you might have some luck with (2) but that is unlikely (do you have any luck persuading them to give you 100% control?). So then, why not (3)?

Like all products sold on the market, low quality music goods sold at a high price with no alternatives is a sign that somebody is benefiting from a contradictory form of law enforcement.

I don't see that at all. What I see is that creators of high quality music are unwilling to take the personal risks to advance the kind of music that they value. Instead, they take the "easy" way out of signing a contract which sacrifices their values, so that they get a pile of quick cash. The protections that exist under the law are available no matter how the album is produced. If you self-produce, you retain 100% artistic control and reap 100% of the profit. I have to say, I really wish that my favorite girl-band had self-produced, so that I could get the missing out-of-print CD -- it's not that hard to make a CD, these days. Unfortunately, I can't even download the CD for money.

if I instead decided to borrow a friend's copy of the CD and listened to it all the way through before choosing whether or not to buy my own copy. I guess this would be the equivolent of borrowing my friend's car, which is of the same make, in order to reach a decision. Would this change the moral implications of my information gathering methods?

Absolutely. I'm pretty ticked off that I listened to one track of one CD from a band, which was totally misrepresentative of their style, and now I have a couple of their vile works which I spent hard-earned real money for. If I knew anybody with their CD's I would have paid them to be able to listen in advance of purchasing. The morally proper law gives the artist the exclusive right to authorize copies for a particular period of time (I disagree abstractly with the "no public use" rule, but I understand how it is required to prevent unauthorized copying, given how many people are lacking in morals). Well, under the law, you are totally allowed to preview an entire album many times if your friend has a copy. You should check out the product in advance, if you can. Wish I had been so lucky.

[dark_unicorn]

I assume you mean by any legitimate means necessary? If so, it's helpful to say that. If not, why not?

Yes, that goes without saying, I'm not a member of the new left.

This isn't accurate either. You don't have a right to not need someone. You have (or should have) a right to not associate with them, which is different.

Well, a little bit of a confusion in terms on my part. I alluded earlier to the fact that I would use my own capital in my choice to attempt to succeed without them, which I meant to imply that I would reserve the right to compete with them on fair terms. And for the record, being that I'm one who only works well when taking my own orders, it is pretty much guaranteed that I would not associate with them unless they agreed to stay out of my way. They want to make money, I want to make money, it's simple and it's fair, I just do not wish to be compromised on my artistic principles in the name of working with others.

Can you be more precise? I'm not sure if you're referring to the FCC, recent court treatment of file-sharing programs, or what.

Primarily I'm speculating on what recent court treatment of file sharing programs, though obviously if they shut down Kazaa and other servers I would simply run the files from my own site, it would just make it more challenging for me to advertize.

However, naturally as an artist and a supporter of the Constitution I oppose censorship in any respect, and based on supposed decency laws (my Catholicism non-widthstanding) so the FCC's existence presents a problem for me. Not so much because of profanity or sexual content in music (neither of which is too big of an issue for me, except maybe a few instances in the latter) but because eventually political opinions will be next.

Assuming your friend acquired the music legally, then you're in the clear. He can do what he wants with his particular copy. Where you enter the wrong is in the making of a copy (which happens when you download).

I see, so technically when I download the song it's already been copied, the fact that I may destroy it later is non-material because it was not mine to being with. Well understood there. I do have some friends whom recieve free promo CDs for the sake of giving online reviews of them, these are usually sufficient to figure out the extent of an album's quality.

My gut tells me to steer clear of Taco Bell. But seriously, if you want to steer clear of bands, record companies, whatever, that's fine. However, that does not translate into a license to take. You accept their terms or you do not.

Fair enough, my gut likes Taco Bell but there is obviously no accounting for taste. I was curious to see how this would be interpreted because after reading some of Ayn Rand's material I began re-thinking my stance on file-sharing. Clearly I was heading more in the direction of what I've heard from you and will proceed with my financial endeavors as such.

[As a side issue, I don't have a problem with people just putting up clips. I don't know technical things, but maybe that helps prevent one source of theft, or maybe it's an effective sales technique (people hear some and then want to hear more so they buy).]

This is basically what I was planning on doing, but I was going to do it in a way that most signed acts don't so as to get more interest in my material (larger sound clips) and with the way file sharing is being treated right now, I am wondering if maybe people are over-reaching here a bit.

[Groovenstein]

Yes, that goes without saying, I'm not a member of the new left.

Glad to hear it. I wish I could agree that it goes without saying, but I do not (not even on this board ). I didn't mean that as a disrespect to you, I'm glad you didn't see it as one. I will try to draft more carefully, however.

I alluded earlier . . . .They want to make money, I want to make money, it's simple and it's fair, I just do not wish to be compromised on my artistic principles in the name of working with others.

A fine position. Thanks for clarifying.

Primarily I'm speculating on what recent court treatment of file sharing programs, though obviously if they shut down Kazaa and other servers I would simply run the files from my own site, it would just make it more challenging for me to advertize.

I'm wondering if you are referring specifically to the Supreme Court's recent decision in MGM v. Grokster. If you are (or even if not, I suppose), consider the specifics of the Court's holding (on p.6 of the PDF): "We hold that one who distributes a device with the object of promoting its use to infringe copyright . . . is liable for the result acts of infringement by third parties." (Emphasis mine.) With the caveat that I haven't read the entire opinion in months, this language requires an intent on the part of the manufacturer to promote infringement.

With that in mind, would you say you have a problem holding manufacturers liable for infringement in situations where it is shown that they distributed their product with the purpose of promoting its use as infringing?

I do have some friends whom recieve free promo CDs for the sake of giving online reviews of them, these are usually sufficient to figure out the extent of an album's quality.

Well that works out well for you, then. I used to work at a retail music store and got the benefit of hearing music all the time in the store, plus any promotional stuff the record companies would give us.

[dark_unicorn]

With that in mind, would you say you have a problem holding manufacturers liable for infringement in situations where it is shown that they distributed their product with the purpose of promoting its use as infringing?

If this could be clearly established then I wouldn't, I didn't object to Napster and Audiogalaxy being shut down, nor would I necessarily be opposed to Kazaa being shut down if it could be proved that they intended to do this. However, some of these sites are very useful for people who wish to perpetuate mass advertizing of their own products, it's almost like having free television space to promote your products (these sites also make money by advertizing for various corporations). I don't want these sites to completely go away, I would prefer them to have some sort of filtration system so that people could obtain permission from the various artists concerned.

Glad to hear it. I wish I could agree that it goes without saying, but I do not (not even on this board ). I didn't mean that as a disrespect to you, I'm glad you didn't see it as one. I will try to draft more carefully, however.

I completely understand, with how rampantly socialism runs through the field of popular music these days, I would be tempted to accuse myself of being a collectivist. I've only been here a couple days and obviously my views on property rights have not been fully established on this forum for others to see.

A fine position. Thanks for clarifying.

The Fountainhead and the Romantic Manifesto are pretty much my Bible and Summa on how to be a musician and poet. Sometime soon I'll submit some material in the productivity forum.

Well that works out well for you, then. I used to work at a retail music store and got the benefit of hearing music all the time in the store, plus any promotional stuff the record companies would give us.

I've actually been writing some reviews myself on various sites, unfortunately I haven't yet made a big enough name for myself to get free promos, but I am hopeful.

[Groovenstein]

This means you have three reasonable choices: (1) compromise minimally (2) persuade the producer that no compromise is required to guarantee a decent profit (3) self-produce. (1) is clearly impossible for you; you might have some luck with (2) but that is unlikely (do you have any luck persuading them to give you 100% control?). So then, why not (3)?

WRT to choice 2, last I knew (I finished my undergrad in music business in 2002) there were three basic possibilities dealing with creative control. One is that the record company has total veto power over anything you bring them. Two is what's called "commercially satisfactory." That means, very generally speaking, that the record company must accept what you give them if it's marketable. This can be worded different ways with the company retaining different levels of discretion. One definition I recall is that it means the company must must accept what you give them if it's reasonably similar to your prior releases. Finally, and obviously best for the artist, is "technically satisfactory." This means the company must accept what you give them as long as it meets basic sound quality standards. From what I recall, this is pretty tough to get, i.e. generally given only to superstar acts.

"Commercially satisfactory" doesn't necessarily mean you're doomed if you don't sound like Britney Spears. If you're a polka band, the record company's going to want a polka record. The thrust of it is they want something they can sell as you. The level of discretion they retain depends on the contract.

There are plenty of other issues, of course. You may be able to swap out some money for more control. Also, there are other creative control issues. A common one is "don't use my music in porn."

If this could be clearly established then I wouldn't, I didn't object to Napster and Audiogalaxy being shut down, nor would I necessarily be opposed to Kazaa being shut down if it could be proved that they intended to do this.

Well, I see that you guessed what the part of the holding I left out. If you didn't read it yet, it says "as shown by clear expression or other affirmative steps taken to foster infringement."

[Edit: spelling]

Edited February 7, 2006 by Groovenstein

[dark_unicorn]

Well, I see that you guessed what the part of the holding I left out. If you didn't read it yet, it says "as shown by clear expression or other affirmative steps taken to foster infringement."

Yes, I read it. However, as I have seen the disaster that has been the Sherman Anti-Trust act portrayed in history (and rightly so) by Gary Hull, I'm just hoping that what constitutes knowingly fostering infringement is clearly defined and that there isn't any "creative logic" being applied to the definition of the given concept.

[Groovenstein]

You raise a great point, though it is one that is beyond the level of time I care to invest right now. If I had to guess, I would guess that it will be treated as a very fact-dependent inquiry, i.e. that you probably won't get much in the way of rigid definition. But please treat that only as a guess, as I haven't read the opinion in some time.

By the way, that last comment of mine to you was intended as a compliment. Again, I find myself having used ambiguous language.

[dark_unicorn]

1. You raise a great point, though it is one that is beyond the level of time I care to invest right now. If I had to guess, I would guess that it will be treated as a very fact-dependent inquiry, i.e. that you probably won't get much in the way of rigid definition. But please treat that only as a guess, as I haven't read the opinion in some time.

2. By the way, that last comment of mine to you was intended as a compliment. Again, I find myself having used ambiguous language.

1. Agreed, it is getting a bit late. Just suffice to say that I'm always guarded about supposed new laws. One of the problems this country has nowadays is this "There ought to be a law" mentality everyone has. Whenever I hear someone saying this, out of sheer annoyance I always respond "there ought NOT be a law".

2. It's one of the problems with talking online as opposed to face to face, it's not always easy to understand the intentions of a post when you don't have facial expressions or tone of voice to guide your interpretation. But I took it as a compliment, don't worry. One of the reasons why I came to this forum was I wanted to discuss things with people who agree with me on most things, for most forums I belong to are extremely hostile to my opinions.

[Hal]

The owner of the copyright owns the exclusive right to authorize the creation of copies. You are stealing that right from him, in claiming that to also have the right to authorize creation of copies of the work that you have no right to.

This is a strange use of the word 'theft'. If I kill someone, am I stealing his right to life? If I rape a woman, am I stealing her innocence? I'm sure you could go through all kinds of bizarre linguistic contortions to describe every crime imaginable in terms of theft, but I'm not sure what the point would be.

Edited February 7, 2006 by Hal