Thoughts on Software and Payment

[jducoeur]

This started life as a comment in tpau's journal, but seems worth a top-level entry. The subject is whether one should pay for music.

From my POV, the pay-for-music thing best exemplifies the difference between possibility, legality and ethics.

Is it possible to avoid paying for music? Sure it is. Many people do it, and almost all get away with it.

Is it legal to avoid it? Slightly unclear -- the laws are rather subject to interpretation, and there's a lot of sloppy space between that which is clearly legal and that which is clearly illegal. It's probably illegal, but enforced even less than the traffic laws.

Is it ethical? Well, there's the rub. IMO, if the artist created the work with the desire to be paid for it, then it's unethical -- wrong in the purest sense of the word -- to not do so. And for me, ethics is really the important bit, far moreso than legality.

Of course, a lot of that is pretty grey. If the money for a song was entirely going to the artist, I'd be a lot happier than knowing that most of that money is going to a studio that takes a wildly unfair cut. Still, there's a world of difference between the artist getting less of my money than they should, and getting none.

And ethics have their limits. My rule of thumb for all software (of which I consider music to be an example) is, "If I can afford it, I should pay for it." I try to take an acid but realistic eye to affordability. If they charged ten cents per song, I would feel utterly obligated to pay. If they charged ten dollars, I wouldn't feel terribly guilty about just downloading it. The current market rate of about a buck a song is pretty well-placed to be about the most I'm willing to pay for a single song. Frankly, I'm hoping to see some price competition as the new model comes in. Once the studios start breaking down (as I think they will), and the now-less-useful middlemen start taking smaller pieces of the pie, we'll hopefully start to see more good songs going for a quarter each, with most of that going to the people who really deserve it: the artists.

But price issues aside: I really do think it's unethical to use intellectual property without paying, if it's within your capacity to pay. Being in the software business myself (in multiple capacities), I'm very sensitive to this...

Comments

[metahacker.livejournal.com]

Complications:

1. What do you mean by "paying for music"? When I listen to the radio, am I paying for music? What about when I listen to music on a cable music channel? What about on subscription radio, like XM?

2. If I find a CD in the gutter, and I take it home and listen to it, is that unethical? I didn't buy it...what right do I have to listen to it?

3. If I hear someone singing a song, should I have to pay someone for that? Who? The artist? The composer? The arranger? The studio? For extra complication, what about if it's, say, a modern recording of a folk song - who do I pay then?

The problem is that music, even more so than something like software, often has multiple entities that seem to want money out of something that isn't entirely seperable. Imagine if there were precedents for borrowing code from one app to another similar to the "sampling wars" of the 80s...licensing aggrements would be even more of a mess than they are now...

On top of that, if I buy, let's say, an 8-track of music, I can have a reasonable expectation that encoding it into a newer format (e.g. ripping it to MP3) so I can continue to listen to it (notwithstanding that the studios seem to want to make this illegal). With software, this forward compatibility is really very uncertain; so what, in the end, do you end up "owning", if you can't even use it 5 years later? I'm not sure.

My personal rule for software was basically "everything should cost $50". If I paid more than that for a piece of software I felt less bad about making copies than if I paid less. I think this is similar to what you say above...I'm just not sure I believe it any more. (obviously, that $50 went up and down depending on the actual functionality of the software, but it didn't go up to the $2500+ that some software costs!)

Not picking on you, just working out some of my own problems with "pay-per-play" and patronage of intellectual creations in your LJ. ;-) I have a really long LJ entry on this I've been holding back until I can make it make sense.

[umbran.livejournal.com]

Most of your complicatiosn are not complicated at all.

1)With cable radio and subscription services like XM, you are most certainly paying for the music with your subscription fees. The broadcaster is taking your share of the fes and paying for the songs. For broadcast radio, you pay for the music with time spent listening to advertisements.

2)For the CD found in the gutter, the issue is different depending on the CD content. If it's a production CD, thenyou have as much right to listen to the music as you would have right to read a book you found on the sidewalk, or to use a pen you've found lying on the countertop. Somebody paid for it. That person either then lost it or abandoned it, and ethically it's a question of "salvage rights".

If the CD is loaded with pirate MP3s, then the issue is different. In essence, the information on the CD is "stolen property". Even if you aren't the one who stole it, you've still no rights to it.

3)If you're walking down a public street and hear a song, then that fits under the case where the performer is not asking you for payment. If the performer has no legal right to sing that song in public, the error lies on his or her head, not yours.

[mr-teem.livejournal.com]

Nit: 1) broadcast radio license fees are paid by the advertisers, who rent time that the station isn't using to play music, broadcast news, etc. [2) nicely phrased]

From the consumer point of view, and talking about music more than software, fair use is what is at risk. Until relatively recently, there was no big issue in copying songs that you purchased on one medium to another. A tiny portion of the price you paid for the blank medium actually are a license fee paid to the industry. Digital broadcast and reproduction breaks that model because now it is not only "too easy" to make, which implies that it can be much easier to illegally share, and there may not be any blank medium to apply a license fee too. (I think there are a few European countries that apply a license fee to blank CD-ROMs--I know several have proposed it; that isn't the case in the U.S.) The industry is scared shitless since it can't see how it can continue to make money, arguably because they can't see out of the box. Pay-per-digital-song is one consumer friendly solution that may work out in the end if the cost is low enough. Heck, the cost is less than a large fries and I can use it again and again. And there's still a lot to be said for a CD-ROM with a nice booklet with lyrics and other information, or a combined CD/DVD ROM with extra tracks that are interesting and more difficult to rip.

[metahacker.livejournal.com]

1) If I change the station during the commercials, am I still paying for it?

2) Replace "found a CD in the gutter" with "found on the hard drive I bought" or worse yet "found on this website I went to" and I'm not sure the RIAA would agree with you (obviously, for a strict parallel you'd need some way to claim that you had the sole copy in the last case).

2b) an interesting distinction; I don't have salvage rights to those because they were initially stolen? what about if the statute of limitations has expired on the theft, or the copyright on the songs has lapsed? It's nitpicking like this that led to "

[Error: Irreparable invalid markup ('<a [...] http://www.everything2.com/index.pl?node_id>') in entry. Owner must fix manually. Raw contents below.]

1) If I change the station during the commercials, am I still paying for it?

2) Replace "found a CD in the gutter" with "found on the hard drive I bought" or worse yet "found on this website I went to" and I'm not sure the RIAA would agree with you (obviously, for a strict parallel you'd need some way to claim that you had the sole copy in the last case).

2b) an interesting distinction; I don't have salvage rights to those because they were initially stolen? what about if the statute of limitations has expired on the theft, or the copyright on the songs has lapsed? It's nitpicking like this that led to "<a href=""http://www.everything2.com/index.pl?node_id=877184">Whatever You Can Get Away With</a>". Blech.

3) That makes sense; but why is the RIAA then upset if I broadcast a copy of my song over the internet for all to listen to? I'm not asking them to pay -- why should it be different? How is public performance different than playing it on (say, non-profit) radio (actually, I never understood that one), and by extension, (non-profit) web broadcast?

[meranthi.livejournal.com]

3) That makes sense; but why is the RIAA then upset if I broadcast a copy of my song over the internet for all to listen to? I'm not asking them to pay -- why should it be different? How is public performance different than playing it on (say, non-profit) radio (actually, I never understood that one), and by extension, (non-profit) web broadcast?

Because everyone who listens has not necessarily paid for it. Radio stations do pay for the songs you listen to. Broadcasting copyrighted material generally goes WELL beyond "fair use." The definition of fair use is what is causing most of the problems as far as I can see.

[metahacker.livejournal.com]

Hmm. I was trying to draw a parallel between "singing in a public place" and "broadcasting for free"; I haven't paid anyone for it in either case, the listeners haven't paid anyone in either case, but the former is protected while the latter is illegal, even if I broadcast my own version (another gray area, is a remix my version? not currently) of copyrighted music.

I used to know the laws on public performance better than I do now, back when I was doing more of it. Ah well.

[meranthi.livejournal.com]

Hmmm, well, usually you're performing something that had sheet music, which you theoretically would have bought. As to singing in public, I have no idea how that works. I am unfortuantely less up on copyright law than I should be. Some of that comes under fair use, but I'm not sure where that line gets drawn.

[mr-teem.livejournal.com]

1) If I change the station during the commercials, am I still paying for it?

You aren't paying for it. The advertiser is (still). Think of it as "junk noise". You're free to change the channel and get different sounds.

2b) What about if the statute of limitations has expired on the theft, or the copyright on the songs has lapsed?

a) Congratulations. You have a CD of random songs which you still don't own the copyright to but have a de facto legal copy of for personal use. b) Heh--like that'll happen with anything made since the nineteenth century. But, if somehow, someday, the copyright lapses, you can do what you want with the songs.

3) That makes sense; but why is the RIAA then upset if I broadcast a copy of my song over the internet for all to listen to?...

I don't think they would be--assuming it is your song (c) and (p) and all and, say, you didn't license it to Sony or Warner in exchange for their promotion and publication.

License fees for public performances are paid by the performer. In licensed public performances (e.g. rock concerts, etc.) you do not have the right to record or rebroadcast - check the fine print on your ticket. Even if you were singing your song on your roof for your neighbors, unless you had completely waived your rights, somebody with a microphone listening to you doesn't have the right to then cut a CD of your latest hits as his own.

[umbran.livejournal.com]

1) Well, now you're paying in terms of the time and effort to scan through the radio dial trying to avoid advertisements. Mr. Teem is technically correct that the actual dollars are paid by the advertisers. The advertisers, however,then effectively get that from the public by having them listen to ads, too. So, here you are paying more in a moral or ethical sense than in the legal sense.

2) Finding it on a website does not count, for in getting it from that site, you make a new copy on your own machine. That's not covered. For the hard drive, if you can prove that it's the only copy of a legally acquired mp3, you're legally fine.

2b) I admit that I'm not fully up on salvage laws, but IIRC, stolen goods are not considered legal salvage, at least so long as the statute of limitations on the original crime has not expired. I don't know what the statute of limitations on copyright violation are. :)

3) The RIAA gets upset because of the implicit license you agreed to when purchasing the CD - that it is for personal use only. It is not for public consumption. Basically the same as the FBI warning on rented videotapes, stating that it's not for public display. You don't own full rights to do anything with your copy. You have only purchased rights to use for yourself.
Public performance isn't much different than broadcast. Technically, if you perform someone else's work in public, you need to pay royalties, or have an agreement that waives the payment. The radio stations are paying fees for every song they broadcast. The guy who goes on stage and sings a cover of someone else's work either pays, or has an agreement.

[siderea]

but why is the RIAA then upset if I broadcast a copy of my song over the internet for all to listen to?

For what value of "my"? Are you refering to a song you wrote, or a recording you have acquired of someone else performing (e.g. a commercial cd)?

[shipbrook.livejournal.com]

Out of curiosity, if I'm reading the implications of your last two paragraphs correctly, what makes it any less of an ethical lapse to help oneself to IP that one can't afford, or which is priced higher than one feels is reasonable?

[umbran.livejournal.com]

the pay-for-music thing best exemplifies the difference between possibility, legality and ethics

One might add "pragmatism" to the list.

Whether it is possible, legal, or ethical to listen to a particular piece of music, there's a practical consideration - will I be able to get more of this music if I do not pay? Wil the artist be able to continue making music, or will the weight of combined piracy weaken returns to the point where it no longer pays to publish works?

This, oddly enoughis where the music industry really dropped the ball. When Napster first became an issue, the music industry response was "shut it down". They were focused on the legality aspect. If they'd focused on practicality, I think they'd have found a much different solution that would have made them even more money...

[tpau]

There is however a differnec ebetween the legal and the illegal ways to avoid payign for music. One can only lsiten to the radio. One can only listen to music when other peopel play it.

The problem is that the defenitions of legal are odd. E.g., technically if i buy a CD, i can make a copy, but learnedax can't. Does this mean i am goign to go and buy us EACH a separate copy of this CD? hell no. i see no reason to, even if it is illegal not to do so.

i pay for music when i think it deserves it. I pay for music when the musician is getting my money. I will nto pay for music when anyone else gets said money, i think it is rather more unethical of them to be doign what they are doign then of me to copy a CD i own for my husband.

this might be jsut me though...

[mr-teem.livejournal.com]

i can make a copy, but learnedax can't

I believe that's not quite true: the two of you are married so it's community property; and assuming it's for personal use. But, it is true, that it's illegal for you to buy a copy and then have your Mom, your first cousin and your uncle make copies. (Nor make copies for them, assuming you have any of these.)

[learnedax.livejournal.com]

Not so, sir. Since MA is not a community property state, marriage does not imply co-ownership, even though our money may be pooled. We could claim shared property if the purchase was drawn on a joint account, but e.g. an individual gift would be explicitly excluded.

This sort of quagmire is why the guideline for intangible property must be ethical judgment rather than strict code of law. Even courts rely much more heavily on case-by-case personal judgment in IP cases than in any other.

[mr-teem.livejournal.com]

Hurm. I stand corrected on community property in MA and I agree that the line is probably grey and squishy when it comes to married persons. There would be little purpose in litigating such a situation to clarify the law. However, I believe it is far more solid in the other examples I cited.

[mr-teem.livejournal.com]

I guess I'm also missing what you think is unethical.

[tpau]

sorry, was writingin a hurry. i think it is unethical of the record label to take most of the money made from the sale of music, rather then have it go to the musician. i think it is unethical for peopel livingin the same hosue to have to buy multiple copies of hte same thing.

[umbran.livejournal.com]

i think it is unethical of the record label to take most of the money made from the sale of music, rather then have it go to the musician

Strictly speaking, it's not really unethical for the label to make most of the money - if they do most of the work getting that music to you. In the past it made a lot of sense, as making and shipping vinyl disks around isn't trivial. For electronically distributed media, though, that argument doesn't hold very well.

As to ethics/legality - there is perhaps a strong argument that the RIAA effectively forms a monopoly that has been abusing their power. Unfortunately, no sufficiently well-funded power has ever tried to call them into court on it, as far as I'm aware.

i think it is unethical for peopel livingin the same hosue to have to buy multiple copies of hte same thing

Well, you see, here's where "hard media" are so much simpler, legally and ethically. With a physical book things are simple - you buy a copy, and only one of you can use it at a time. There's no question as to violation of rights in normal use.

Some of the newer download systems actually use a variant of the standard RIAA rights. They allow a certain number of copies to be made and distributed. For them, it is legal to make a small number of copies of the file. You can use them yourself, or give them to someone else.

[mr-teem.livejournal.com]

I can't think of any tangible or "intangible" good that is distributed and advertised nationally where more than half of the consumer price goes directly to the creator. Quickly scanning web references tells me that artists typically get anywhere from 1/8 to 1/12 of the consumer price of a CD. Multiply that by a half-million CDs and that's real money. (Some artists are able to sell their CDs directly to consumers, like at a concert. I like buying them there because they do, typically, keep more of the money. Artists who distribute via the Internet directly also make more money.)