Adventures In Audio
Is it legal to download music from the Internet? Is it moral?

David Mellor

David Mellor is CEO and Course Director of Audio Masterclass. David has designed courses in audio education and training since 1986 and is the publisher and principal writer of Adventures In Audio.

Thursday January 1, 2004

The RIAA are the mouthpiece of the record industry in the USA, and their views are largely supported by similar organizations in other countries around the world. Yes it is illegal to infringe copyright. Yes it is immoral, in the sense that anyone who has ambitions to become a rich and famous music star wouldn't like it done to themselves. But have the RIAA overstated their case? Do the record companies in fact use file sharing networks to their own advantage?

Firstly, let's look at the term "illegal downloading". In fact, let's look at the first word, "illegal". What does this simple word mean? One possible definition is that something is against the law. That would be the written law of the land, or the internationally accepted laws of copyright.

However, in most Western countries, just because a law has been written down and approved by the government doesn't actually make the contravention of that law punishable. The validity of any law has to be tested by the courts. Only when a law has been tested in court in a real trial that goes through to completion is that law valid. Even then, circumstances differ and each case is decided on its own merits.

Now let's look at the word "downloading". This means that the downloader has made a copy of a file that someone else has made available. A study of copyright law will show that it is illegal to reproduce or distribute copyright material without permission. Downloading does therefore seem to be reproduction, if not yet distribution. So it is illegal.

But if you read the exact wording of the major legislation, it seems obvious that the intention is to prevent large-scale reproduction for subsequent distribution. The wording however does apply to the lone downloader who has no intention of distributing the material further, and the heavy hand of the law crashes down.

Except that it doesn't crash down. It never has. What system of justice that could call itself fair could prosecute a person for making a copy of a song for their own use, when there are real pirates who are trading in millions of units and making a vast illegal profit for themselves? The term "pirate" in this context has a precise definition...

Unauthorised duplications of music from legitimate recordings for commercial gain. Pirated CDs or music cassettes may be compilations such as 'Top Ten', 'Hollywood Hits' or a combination of hit titles of different music companies. The packing and presentation of a pirate copy does not usually resemble a legitimate commercial release.

In these terms, downloaders are in no sense pirates, since there is no commercial gain involved.

The RIAA seem to want to bring downloaders under the cudgel of the law when the people who are doing the real damage to the record industry get off scot-free. The RIAA would also find a more legitimate target in people who make files available for download, otherwise known as "sharing", which is a totally different thing from downloading.

And when they eventually do bring a genuine downloader, not a sharer, to court and go through the entire process of law, will they win? Only then will the law be valid.

Anyone who makes a living from music, or hopes to in the future, must recognize the moral argument that if they download copyright material without the copyright owner's permission, then they are doing something they wouldn't like to be done to themselves.

However, many downloaders use file sharing systems to listen to a range of music, then they actually go out and buy the CDs that they want. Record companies know that, and they also know the immense value of viral marketing. How else do album tracks 'sneak' out of the studio before the album is released. Yep, they are leaked by the record company for the purposes of marketing.

It is possible to make a case that recorded music should be free. Bands, artists, management and promotion companies, studios, musical instrument manufacturers, roadies, technicians and even music-industry lawyers could all still make money - there is vastly more money to be made out of touring and merchandising than there is out of record sales.

But the record companies can only make money from records. Hence their scare tactics that file sharing is killing the music industry - it only affects the record industry, and even then it's probably better for them in terms of promotion.

And we don't even need a record industry these days. New acts can distribute their tracks via the Internet, tour and gain a following, sell T-shirts and make a pile of money. And people will still want CDs to have and to hold, even if the music is freely downloadable, and they can buy them direct from the artist.

Until the RIAA takes a more reasonable stance and goes after the real pirates, not ordinary people, we say "stuff the record industry". They have no-one to blame for their woes other than themselves.

[For legal reasons, it is stated that this article does not contain legal advice]

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