Thursday, May 27, 2010

The Ethics of Illegal Downloading: Update

This is an update to yesterday's entry about the ethics of illegal downloads. There's been discussion via various channels.

Seth Godin posted the following (as a comment to that entry):
"I always disagree with Randy as a matter of principal, Jim, but the flaw in your point is pretty clear to me: when you buy second hand, you lower the cost to the original purchaser. You create an economic incentive to buy new, one that in an efficient market for second hand could be significant."
I'm pretty satisfied with that philosophically, Seth, but, practically, I suspect many CD/DVD sellers on the used market are ripping and sharing prior to selling, so it's probably an ethical zero sum (i.e. I'm enabling so much free/illegal distribution that it nullifies the benefit of enabling new purchases).

Randy Cohen had this to say via email:
"The key to solving these problems is to make it effortless for the consumer to pay his or her fair share to the producer. When you listen to a song on the radio, for example, the writer, publisher and performers are all paid a tiny amount, with no inconvenience or moral qualms to you. In England, libraries pay royalties to authors whose books are borrowed. Both of these systems were in place long before computers made it easy to keep records of such transactions. It would present no technical problems for Amazon to build in a small fee for each sale via their Marketplace, an infinitely better solution than anything any individual can do. But only a change in law will compel them to do it. Don't wait around for anyone's conscience or understanding of the economics of writing to dictate such a change.

And the flaw in Seth's argument is that you "lower the cost to the original purchaser" at the expense of the folks who created the music. And this: is there any actual evidence that this "savings" actually increases sales? I'm skeptical."
On that last part, Seth would likely make the point that many second-hand buyers would not otherwise buy new, so they're probably doing more good than harm in supporting those who DO buy new.

I like the proposal to microcharge for (and track) all sales, not just new. It would be a logistical nightmare, though; much more so than the ASCAP model for music. It could only viably be instituted for the largest and most established second-hand channels (e.g. Amazon). But, of course, vendors would argue against the unfair targeting. So, while I'd love to see it, I doubt it's workable.

And I found that last sentence (about "waiting around") thoroughly cryptic. Again, if support for the artist is the crux of the ethical argument, there's either an ethical compulsion to always buy new, or else we may as well freely download content, since my thoroughly legal and ethical 2nd-hand purchases provide no support whatsoever to artists.

Update: be sure and read the comments posted to this entry.


Seth Godin said...

Ah, the last word...

Randy, are you saying that the market for used cars doesn't help GM by lowering the actual economic cost of buying a new car?

Or that the market for used houses doesn't help Toll Bros?

There are people in the Author's Guild who are against public libraries. This is such an economically and morally flawed argument that it makes me gasp.

Jim Leff said...

"There are people in the Author's Guild who are against public libraries. This is such an economically and morally flawed argument that it makes me gasp"

I've heard successful Hollywood screenwriters make an interesting point: yes, the changes the studio tries to impose on your script are inevitably stupid and heavy-handed. But you must bear in mind that while the changes always suck (studio execs are not creative people), the REASON for the changes is always a bona fide script problem. So the trick is to disregard the bad suggestions, home in on the problems that elicited them, and find better solutions. (I'll add my own maxim: The stupider the proposed solution, the more intractable the underlying problem.)

I find this a wonderfully enlightened point of view, and try to apply it to daily life. When I see stupendously bad suggestions, like abolishing libraries, there's inevitably a stupendously intractable problem behind it. Such is the case here.

It's never been easy to subsist as a creative person, and it's getting even harder. Intellectual property law is past the point of obsolete, and creatives need protection, because the powerful operate gleefully in an essentially lawless zone. So rather than knock the stupid solution, why not psych out some better ones? Hey, Randy at least tried!

Jack Marshall said...

Randy Cohen's willingness, oft demonstrated in his column, to discount the unethical nature of lawbreaking makes this topic more complicated than it needs to be. Property is owned by the person who creates it or buys it, and just taking that property without permission or paying for it because you can get away with it is unethical. Seth is right; Jeff's weird "balance of ethics" argument is, like 99% of the justifications for illegal downloading, a rationalization, and a tortured one at that. Everyone pays, because once you start letting the property go---not just be temporarily borrowed by, but owned---by people who don't pay, nobody will pay.

Jim Leff said...

"Randy Cohen's willingness, oft demonstrated in his column, to discount the unethical nature of lawbreaking makes this topic more complicated than it needs to be. "

Cohen does hastily dispense with the legality issue. On the other hand, he's following in footsteps of centuries of ethicists who draw a firm dichotomy between ethical behavior and obedient behavior. It goes without saying that laws can be immoral, and that unethical behavior can be legal. And Cohen's an ethicist, not a lawyer or lawmaker. And I'm discussing ethics, not legalities.

And I think you've barked up the wrong tree by using the "stolen property" argument. That doesn't stand up well; Cohen, in the radio show which spurred this discussion, did take time to make the rather obvious point that, unlike a stolen wallet or car (or, for that matter, a stolen book or DVD), the rights owner loses no actual property in an illegal download.

That, of course, doesn't by itself justify the downloading.

As a writer/musician, I have keen interest in seeing people pay. But it's not going to happen via weak arguments and outmoded IP law and business models. We're overdo for a revamp. Fortunately, there's one single thing 99% agree on: the people who create deserve to get paid. And that's actually a very hopeful thing.

Remember how everyone was so surprised when iTunes proved so popular? No one expected billions of $1 downloads of material that could be had for free elsewhere. But it worked. People are willing to do the right thing if offered a vehicle that makes sense. They're not going to do the right thing as a result of dodgy rants about obsolete legal models of property theft. The creative industries need to wake up and see that they need to find smarter carrots, not bigger sticks.

Everyone wants creatives paid. Awesome. Time for innovation, no?

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