Michael Nycyk

The debate about the morality of file sharing – as ‘theft’, ‘piracy’, or a ‘gift economy’ continues. Adrian Cosstick (2009) suggested in Platform that the Pirate Party should have input into the legislation of viable solutions to manage this issue. Cosstick proposes flexibility and co-operation to create new channels of distributing music. Despite recent innovations to prevent lost revenue, such as paid streaming services, the core issue is that the record industry sees music as property, and sharing as theft. Along with recent ideas such as DJ Shadow’s album generating revenue from a BitTorrent, these reframe the moral aspects of file sharing, copyright and piracy. This essay argues that such ideas can, in addition to addressing economic concerns, change how society views intangible property. Drawing on elements of Émile Durkheim’s theory of morality, this essay proposes that new ideas and channels of distributing music are still needed to change perceptions of theft as a moral problem. Record companies need to revisit and implement ideas of alternative distribution of music instead of cultivating campaigns which portray sharing music as ‘immoral’.

Keywords: Morality, Theft, Durkheim, Music, File Sharing, Piracy, Internet

Recording companies and musicians continue to argue that downloading music is wrong and their music is their property providing an economic livelihood. On the other hand, practices of downloading, uploading and sharing music are engrained in everyday life. Organisations such as The Pirate Party and The Missionary Church of Kopimism in Sweden view the very concept of copyright itself as immoral, yet Cosstick (2009) and Stallman (2009) point to means of overcoming this moral divide. Drawing on the thought of Émile Durkheim, this paper discusses the morality of sharing, as new channels of distribution bring with them challenges to existing moral attitudes. First, some elements of Durkheim’s conception of morality are drawn on to understand the morality of file sharing. Then the essay examines the history of efforts to stop file sharing, and to modify business models in the face of new technologies. New ideas of distributing music potentially manage the problems of economic and artistic value, and change the moral perceptions of property and theft.

Durkheim’s conception of morality

Durkheim believed that morality was important for individuals and the society they lived in. He stated that morality must match the encountered situation, and that acknowledged morals are fluid and changeable (Durkheim, 1961). Disruptive events of any kind are barometers of morality; when they happen there is a need for a moral education to correct something within that society (Durkheim, 1973). Durkheim’s A Moral Education described three elements that must exist in order to reform any problematic act in society: a spirit of discipline, attachment to social groups, and autonomy. Discipline restrains the impulse to act selfishly, attachment places the group before the individual, and autonomy refers to the free adoption of social values (Durkheim, 1961). The last element is crucial in changing morals because as, Hagens (2006, p. 217) notes, “morality must contain an element causing both its imperatives and its prohibitions to present themselves as desirable”.

The rise of Napster was such a barometric event: musicians and recording companies saw music sharing as a case of theft, unfair and immoral. Lars Ulrich from Metallica complained: ‘it is therefore sickening to know that our art is being traded like a commodity rather than the art it is’ (Marshall, 2002, p. 1). In 2012 the lead singer of the band Cracker expressed a similar view: that listening to music without paying, even on digital music streaming services, is cheating musicians out of the value, not just the derived revenue, of their work (Timberg, 2012).

Therefore, the moral framework needs to justify both the benefits of a social norm (such as musicians being paid royalties on sales through a record company) and the punishments for transgression (such as the RIAA suing file sharers for lost sales revenue). We see this operating in public education campaigns for weight loss, quitting smoking or safer sex practices where such strategies appeal to the person changing to fit in with a desirable moral code. Record companies present file sharing as theft and hence morally wrong, in order to try to stop these practices.

Perceptions of theft and intangible property

Throughout history, the immateriality of music has problematised its status as intellectual property as this quote shows (Bruncken, 1916, p. 77):

“The man who steals my coat, or the defaulting bank official who filches my savings, does not deny that I am entitled to my property. Yet the unsophisticated mass of people need considerable explanation before they understand that it is wrong to perform a musical composition in public or even to copy the notes embodying it, without first getting the composer’s permission. Who is wrong, the author who insists on his right, or the man on the street who fails to see that such right exists?”

The MPEG-1 Audio Layer 3 (MP3) is a digital file type valued for its balancing of fidelity and portability (Hinduja, 2006; Sterne, 2006). But it is not often considered property in everyday life – and hence ‘sharing’ is not seen as ‘stealing’ – because it is intangible. Gorry (2003) provides an anecdotal example of the morality of stealing from his information technology ethics class: students viewed the taking of a physical book as theft, but not the transferring an MP3 file from one laptop to another. According to Manesh (2006) millions see theft of physical property, but not copyright infringement, as immoral. Internet users often view downloading as a far more moral act than counterfeiting compact discs (BOP Consulting, 2009). Nor do digital files drop in quality when they are copied, a criticism made of practices of cassette dubbing (Music Piracy: Flashez, 2008). Self-discipline as Durkheim frames the term is lacking because inhibitions to resist downloading are low (Lysonski & Durvasula, 2008).

It is my property: the morality of theft

Music industry stakeholders have launched morality-based education campaigns to change public perception of file sharing, and increase penalties for infringement. Rodman and Vanderdonckt (2006) describe an ideological and economic struggle over music downloading and piracy. It is a struggle over the ownership of culture, to transform intellectual property into something that resembles physical property: not for sharing. These messages apply Durkheim’s moral element that one must understand why paying for music is important and then embrace it.

The moral position of many involved in the music industry is that songwriters are victims of downloading and ownership of music must be guarded. Music Rights Australia (2012) states sharing is wrong because copying music undermines artists being paid fairly for their ‘hard work’. Sphere Analysis’s (2011) report to the Australian Government stated $900 million and 8300 jobs were lost due to downloading and piracy activities. The intention is to show that Internet users contribute to this problem by downloading, uploading and sharing music without paying the artist for that privilege. To illustrate the depth of feeling in the music industry, Rick Chazan in 2011 gave a speech about music piracy at a function held by the Music Industry Piracy Investigations organisation. He uses religious rhetoric in a plea for stopping music piracy behaviour with these two comments (Music Industry Piracy Investigations, 2011):

“As a music manager myself of 10 years I am all for adapting artists’ business to new ways and the current context in which we live. But that aside, whatever happened to “thou shalt not steal?” I come from a Jewish background. My family and myself are not particularly religious people but “not stealing” was clearly ingrained into my psyche from a very young age. I have a vivid memory of stealing a small plastic animal from kindergarten. I put it in my pocket and took it home. The guilt and fear I felt was so palpable that I had to turn myself in.”

“This issue is not just about music piracy. It is also about basic humanity. Do we want to live in a world where stealing is justified because technology allows it, because you can get away with it and everybody else is doing it?”

Chazan echoes Bruncken’s (1913) view on this issue, illustrating an example of an attempt to get, in Durkheim’s terms, people to see why paying for music is important and why paying for it should be ’embraced’ by all. His quotes also reflect the changing nature of the music commodity, and appeals to a sense of humanity to prevail over technological advances. In 2009 online store Apple Bazaar appealed to its customers’ ‘love’ of music to reduce piracy: ‘all this is just due to those who smile after downloading a music file for free…this is not the right thing to do, especially if you’re a music lover’ (Apple Bazaar, 2009). Frequently music industry bodies all on governments to promote consensus that sharing is morally wrong (Chiou, Huang & Lee, 2005). The question for record companies, in Durkheim’s terms, is how can Internet users receive a moral education to not only see file sharing as theft but embrace this idea?

While the record industry’s presentation of file sharing as theft – and hence morally wrong – has been fairly consistent, studies of online filing sharing practices illustrated the sharing culture’s disregard for morality. In a music-related chat room, one sharer advises another where to go to find a shared directory of music. The interactions observed in his study, as exemplified by the example below, did not show regard for others’ musical property. Whilst Whelan in this study does not judge those committing this, the participants in this interaction display a notable lack of what Durkheim calls self-restraint in thinking that this is actually the immoral act of stealing (Whelan, 2006, p. 69-70)

“Nine days later, kaffiend is looking for samples-

Extract 13: raga jungle room, 10/14/03

[kaffiend] any of you have any good bass sample?

[illacrew] add Breakmasteruk

[illacrew] and browes him

[illacrew] he haz everything a junglist could want…

[illacrew]well anyway he has wikkid samples

[illacrew] you should leave him a tahnk you note, if you get crazy

[kaffiend] where can i find these at?

[illacrew] downloading

[illacrew] Breakmasteruk

[illacrew] in his shared directory

[illacrew] dhe has 300 gigs of samples.”

This is an example of the frequent type of activity that concerns the music industry. In Durkheim’s framework it is actually an immoral act because it is stealing without giving due financial compensation to those who created the musical works. Yet the Pirate Party, some musicians and other activists may see these acts of taking others’ music as acceptable.

Musicians’ conflicting views on morality and file sharing

Musicians’ perspectives on the morality of filing sharing can differ significantly from those in music corporations. The responses of Tom Ellard, formally of Australian electronic band Severed Heads and Greg Gillis, known as Girl Talk a mash-up music artist who uses only others’ music, illustrate a sharp contrast of moral views on the sharing and re-use of their own music and that of others. Both have sampled other artists’ music works, yet they have differing views on how their own work is used.

Ellard has responded with anger and indignation when his music has been uploaded to YouTube, and edited into others’ videos. His personal blog admonishes both fans engaging in such practices, and those in academia who support potential mechanisms of theft (Ellard, 2011a):

“Like all good Fascists they pretend to speak ‘on my behalf’. Particularly distressing are those academics that promote their redistribution of other people’s work as ‘a gift economy’, the same that would condemn anyone that spoke on behalf of another person with less power; but then academia and hypocrisy are siblings.”

The use of ‘Fascists’ in this tone suggests something bad and sinful about another’s behaviour. In this case, redistribution of work as part of a gift economy is frowned upon as unacceptable. Ellard further expresses his disapproval of others’ behaviours of taking his music (Ellard, 2011b):

“A big …off also to all the MP3 blogs that uploaded my stuff. You talk like revolutionaries, but you are actually the traitors.”

Ellard indirectly names the sin of theft openly admonishing those doing such practices as ‘traitors’. This shows common differing views of theft; those who took Ellard’s music did not see it as theft, but Ellard does. Another example of Ellard’s view drawing a comparison between property and theft is his direct comment on a YouTube video upload of his 1991 song ‘Pilot in Hell’ (walkingupsidedown, 2009) being openly stolen by someone who does not own the song:

“This is my music. I didn’t want it uploaded by you. You didn’t ask me. Since when did you have the right to decide where my work was shown?”

However, in 2012 a comment is posted in response to Ellard’s protest (although Ellard’s comment has since been deleted):

“you are embarrassing yourself over the internets, if not for youtube we would’ve never knew you existed, thanks for the exquisite music you old whiner.”

Ellard’s comments mirror the opinion of many in the music industry; their music works are theirs. But the terse reply by another YouTube poster clearly disagrees suggesting they have a different moral view of the upload of Pilot in Hell. We become thieves if we use it in ways the artist did not want when it is for our own economic or cultural purposes without fair payment to the artist or acknowledgement of that artist’s work.

Yet others distinguish between theft and the re-use or appropriation of others’ creative works. Gregg Gillis, a mash up artist who uses the stage name Girl Talk, openly discloses using others’ music works as he combines music samples to mash up hip hop music with other artists’ music. According to Gillis, not only is his mash up practice not immoral, it is also not illegal (Levine, 2008):

“Mr. Gillis says his samples fall under fair use, which provides an exemption to copyright law under certain circumstances. Fair use allows book reviewers to quote from novels or online music reviewers to use short clips of songs. Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Mr. Gillis contends he should be covered under fair use.”

Whilst this view ignites further debates about fair use and copyright, Gillis has attracted many who disapprove of these actions. He does not see it as theft, but ironically nor does he see those downloading his music as thieves as he comments (Bilton, 2011):

“Interviewer: Did it bother you when people illegally downloaded your first CDs?

Gillis: Absolutely not. I loved it. It was really exciting. I actually used to go on Napster and Lime Wire and check to see how many people where stealing the albums. It was very flattering.”

Clearly, Ellard and Gillis view uploading, downloading, sharing and re-use of music differently. In Durkheim’s terms, Gillis does not constrain himself from taking other’s music, and does not adhere to the recording and other artists’ ideals that music is the property of individuals. Yet Gillis allows fans to pay what they want for his works, a facility that Ellard’s fans would also appreciate. But if this dichotomy exists then how do interested parties who own and distribute the music appeal to the consumer’s morality to change their behaviour and always pay for the music the consumer is downloading, uploading and sharing?

Reframing morality through new distribution methods

The conclusions drawn from the attitudes of musicians, recording companies and other stakeholders examined here is that the divergence of views is wide. Rationally, one would expect people to view MP3 files as property; not paying those who created them is a form of theft. However, Durkheim’s view of morality as subordinating individual gratification to social norms does not appear to be working. For example, Dangermouse combining Beatles songs with Jay Z’s raps to produce the Grey Album was a barometer of public morality: the Grey Tuesday protest was a large-scale response to copyright holders’ prosecution of Dangermouse. As Ayers (2006) describes, many seemed not to view this cyber activism against the potential copyright action from the Beatles’ recording company as being wrong even though it openly used the Beatles’ music without permission.

Record companies and their stakeholders need to accept that prohibitions on file sharing are not deterrents. To do this a co-operative approach needs to be taken. The ideas of the Pirate Party and others reframe the moral perceptions of sharing. As Condry (2004) and Stallman (2009) advocate, supporting artists through alternative modes of distribution is effective in encouraging purchasing rather than stealing of music. Campaigns grounded in research must be aware of their cultural and moral environment. Higgins, Wolfe and Ricketts’s (2009) study into practices of music piracy by college undergraduates found an that positive perceptions of piracy were influenced by students’ peer groups (Higgins, Wolfe & Ricketts, 2009). This suggests the pro-piracy attitude has far outstripped the anti-piracy attitudes the music industry has tried so hard to implement.

How do Cosstick’s suggestions reflect elements of Durkheim’s views on morality? Co-operating with the Pirate Party means recording companies and musicians need to reframe their view of theft and embrace a level of trust with consumers. For example, Cosstick (2009) states:

“In this circumstance, an album or a song downloaded from somewhere like Napster or The Pirate Bay would not be ‘piracy’ as long as ownership of the work is for private consumption or to share with others for the same purpose. In an instance where the work is to be included in an advertisement or an individual wants to cover a song for financial gain, it would then be up to the owner of the intellectual property as to what sort of recognition and compensation is due.”

This example is indicative of the move towards a stance that values sharing property, much like the contents of libraries. Cosstick also suggests the owner of the intellectual property should have the power to decide on the compensation due to them. Music streaming has, despite some protests from musicians, allowed one technological fix: users can listen to music for free, but must pay to own the files. The collaboration of DJ Shadow and BitTorrent offers ‘bundling’ as a solution (Torrent Freak, 2012):

“The idea is simple. BitTorrent Inc. helps artists to promote a bundle of free content to their 150 million users. This bundle includes a piece of sponsored software such as a media player or anti-virus package that can be installed as an option. When a user installs the free software, both the artist and BitTorrent get a cut of the proceeds. ‘We believe we can make digital distribution even more viable for creators and fans. So, beginning now, we’ll be testing new ways to drive profitability for creators while delivering even more meaningful media experiences for our users,’ BitTorrent CEO Eric Klinker comments on the announcement.”

This changes the moral perspective on music file sharing because this idea potentially offers a viable solution to the core moral problem of theft and artists being paid for their music. It also legitimises businesses previously portrayed as encouraging theft and taking a toll on the industry as a whole, as the MGM vs Grokster case in 2005 in the United States exemplifies (Lysonski & Durvasula, 2008).

To further solidify changing moral perspectives on music sharing involves those previously characterized as ‘thieves’ participating in legislative changes to copyright acts and the design of mass media campaigns to promote awareness of alternative distribution channels. The Pirate Party’s beliefs that file sharing must promote the dissemination of culture in public spheres and ensure the creator is compensated (Cosstick, 2009; The Pirate Party, 2009). Again, it is this balance that is being called for which alternatives, such as DJ Shadow’s collaboration with TorrentFreak, Radiohead’s pay-what-you-want pricing of In Rainbows, and free streaming services such as Spotify offer. The effectiveness of these strategies needs further evaluation as to whether, as my reading of Durkheim suggests, they encourage the recording industry, not just downloaders, to embrace the notion that property is being shared, not stolen. The radical social movement to retrain unlimited property rights of copyright holders and making them abandon proprietary rights, espoused by Lee (2005), was an unthinkable moral shift at that time. Recording companies and artists responded by reframing moral ‘sharing’ as immoral ‘theft’. In 2012 this argument to give up proprietary rights and share is a pressure brought on all stakeholders in the music business and encourages them to embrace this situation as sharing not theft, hence no longer immoral.

There is, however, scepticism towards the claim that every part of the music industry suffers because of theft. As Moses (2011) reported, the Australian Institute of Criminology has criticized the findings of organisations such as the Australian Federation Against Copyright Theft (AFACT) bring out. This reframes the idea that downloading is not actually immoral because somehow revenue is finding its way to the artists, recording companies and others (such as through increased ticket or merchandise sales). Stallman (2009) has long argued such solutions are just changes in business models not widespread theft, proposed taxes on Internet connections or blank recording media as suggested models of revenue generation for artists. Another strategy is to continue empirical and anecdotal research into downloading behaviours. Yar (2008) criticises the use of cartoon characters, such as Copyright Crusader, in moral public education campaigns. Kinnally, Lacayo, McClung and Sapolsky (2008), in their study of music downloading habits of college students, note that many of their respondents do not even consider sharing a moral problem, and call for more research as to why this might be.

Currently, research has questioned the effectiveness of punishment of those that steal or upload music, and states that promoted collaborative approaches will be more effective in influencing people to pay for music (Martin, Moore & Salter, 2010; Doloswala & Dadich, 2011). Such ideas from Cosstick (2009) and others point to, in Durkheim’s description of morality, the opportunity to reframe the idea of theft of property and influence people to view it as immoral. This is maintaining momentum, but the recording companies and other stakeholders still argue strongly the act is immoral and needs punitive measures to stop it. In essence, we need even more pressure brought on the recording companies to persuade that new methods of distribution are moral avenues to take, combined with even more research to understand motivations for downloading in the absence of users not considering it theft. Many artists have already embraced alternative models of music distribution, but recording companies have more work to do in reframing the moral debates, which is still, even with music streaming services gaining mass acceptance where artists ‘mostly’ get paid, difficult to do. Clearly this cooperation between music fans, artists and recording companies who differ in their views of what is immoral and moral is still not producing a viable working solution for all.

Conclusion

It is unfortunate that Cosstick’s call for cooperation between activists such as The Pirate Party and record companies is still mostly unheeded at this time. Durkheim’s conception of morality attempts to understand what is appropriate to the society at a point in time. “Moral education” is required for music consumers, artists and recording companies alike. Research must continue to explore new policies that might benefit all parties. Whilst practices of taking music without payment are unlikely to diminish in the years to come, the moral framing of this issue needs to change. Cosstick was correct to argue in 2009 that The Pirate Party had a role in actually creating avenues for music artists and stakeholders to gain revenue whilst still encouraging a free sharing culture downloading has created. That means taking a new moral position on music as property. Reconciling what is moral and immoral about music file sharing is still the core problem limiting this debate. Musicians themselves may be divided over this issue, but recording companies need to ‘freely embrace’ (in Durkheim’s sense) the notion that new models of distribution can work and adopt them. Events like the release of Radiohead’s In Rainbows act as barometers of changing social morality; if record companies wish to survive the storm they will need to acknowledge that the weather is changing.

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