Illegal Downloading of Music - Essay Example

Morality of Illegal Downloading Introduction Downloading music is illegal. It is illegal because the music that being downloaded are subjected to copyright laws, therefore the musicians and the recording companies own the exclusive right to use and license these songs and albums. Therefore, since people who download music over the Internet are taking licensed property without paying for it, it is stealing. Some people might not see it a stealing, as it is taking something that is relatively intangible, as opposed to actually taking a piece of solid property from the rightful owner, but it is stealing, nonetheless because it is taking something of value without paying for it. It is also immoral. Or is it? There is not a doubt that there are substantial harms that might come through the illegal downloading of music - for one, illegal downloading takes money out of the pocket of recording artists, and it might stifle innovation and growth in the industry. But, on the other hand, it is more morally complex and ambiguous than might be on the surface. It can be compared to white collar crime, in that there are diffuse victims, diffuse perpetrators, and it is difficult to know exactly who is being harmed by it. Also, illegally downloading music is not necessarily in violation of social norms, as so many people do it, therefore one basis for morality, social norms, is not necessarily a basis for the censure on illegal downloading. Finally, the record companies do not have clean hands, as they are known to take advantage of artists because of unequal bargaining power, such that some successful recording artists end up in bankruptcy court because the contract terms were so onerous that these artists got little out of it. Illegally downloading music might hurt the recording industry, but they hurt artists, so, in essence, illegally downloading music is giving them a taste of their own medicine. This essay will explore the moral grounds and reasoning of illegal music downloading by examining the arguments why it might not possibly be immoral, then make a conclusion that it is, in fact, immoral, regardless of the arguments otherwise. Analysis In examining the morality of whether or not downloading music illegally is ethical or moral, one must examine the players in the industry and the players who are a part of the illegal downloading scheme. And, illegally downloading music has a lot in common with white collar crime, which might include extortion, false statements, fraud, tax evasion and the like. According to Green (2004), white collar crime does not necessarily have the same degree of moral unambiguity as do other crimes, such as robbery, rape and murder. The white collar crime might not be morally wrong, according to Green (2004), because the behavior that is conducted is considered to be more or less acceptable in the realm that it is performed, which means that these crimes have a certain level of moral ambiguity about them. In fact, there are ten factors which he states he associates with moral ambiguity, in the context of white collar crime. One is that there are cases which distinguish between criminality and merely aggressive behavior. For instance, some kind of alleged extortion might be considered to be hardball negotiating, and nothing more. Another is that there is morally ambiguity in inchoate offenses, which means that there is liability for offenses that haven't quite been completed. There is also an issue of overcriminalization, according to Green (2004), and this, perhaps, is most pertinent to the issue of the illegal downloading of music. Overcriminalization refers to offenses that a great percentage of society does not necessarily see as wrong. Green (2004) argues that how a society views a certain offense matters – that society might think that certain things are unambiguous and worthy of censure, no matter the context – this would encompass things like stealing or rape or other kinds of crimes where people are hurt. But society, according to Green (2004) does not necessarily think that downloading music illegally is wrong. In fact, this is the view of some 50% of society, as this is the percentage of people who believe that it is not wrong to illegally download music. Moohr (2005) notes that the problem of overcriminalization is one that is pertinent when looking at criminal copyright laws in general. He states that there is congressional overreach often in the copyright laws, because the laws are based upon the notion that “I'll know it when I see it,” which means that copyright violations are not necessarily based upon something empirical, but, rather, are based upon something that is much more subjective. Copyright violations are in the eye of the beholder, so to speak. There is not necessarily a proper cost-benefit ratio to these laws – that is, the disadvantages of the laws to society outweigh the advantages. What counts as a benefit to one group would be considered to be loss to another group, so these costs and these benefits must be weighed against one another. The harm that is prevented by the copyright laws includes the harm that comes to the copyright holder as well as the harm to society in form of stifling creative processes – the thought is that if there is copyright infringement, this results in lower revenues for the artists, and this, in turn, might discourage the artists from making music in the future. They see that there is little value in it, monetarily wise, so they decide not to engage in it (Moohr, 2005). Another pertinent morally ambiguous category that Green (2004) talks about is the category of crimes where there is a difficulty in identifying victims and the is a difficulty in defining harms. This is when the activity occurs in large organizations and it involves complex procedures. There is a real problem identifying who is hurt by the crime – this might encompass such crimes as tax evasion, insider trading and bribery. This is when the harms are diffuse and indirect. It is difficult to say which victims are harmed by these crimes – for instance, there isn't any one group of victims who are harmed by tax evasion. Arguably, society is harmed by it, because it results in less money to the public treasury when there is tax evasion. But there are so many different victims, that the harm is sufficiently spread out that it becomes morally ambiguous as to whether or not this harm is really something that should be censured. When there is price fixing, there is a large group of people who are harmed by this, so, too, the harm is sufficiently diffuse that there is a difficulty in identifying victims (Green, 2004). This category definitely would encompass the problem of illegally downloading. There are a multitude of victims involved in this crime, and the victims are all recording artists and all record companies. There are so many victims that it would be difficult to tell exactly who is being harmed. In fact, it would be impossible to tell this. There might be a vague feeling that there are fewer albums being sold than there were in the days before illegal music downloading, but it would be impossible to state that Taylor Swift would have sold X more records if people were not illegally downloading her work. Or that Y record company lost revenues in the amount of X through illegally downloading. The problem is so widespread that it is impossible to gauge the harm done to individual victims, therefore it is difficult to say exactly how each of the victims are harmed. This makes it morally ambiguous, according to Green (2004). Another category of morally ambiguous crimes, according to Green (2004) are crimes that involved a diffusion of responsibility. That is, these are crimes where there are so many people actively involved in the crime that it is difficult to tell who, exactly, should be held responsible. This, too, implicates the music downloading industry, because there are so many people involved in doing it, that it would be impossible to pinpoint any one individual culprit. Green states that one more category that encompasses morally ambiguous crimes is that of crimes that are characterized by a lack of mens rea, which means a guilty mind. There are serious harms that are not criminal because they do not have the mental intent element. Criminal law requires, in general, some degre of mens rea, which means that there must be a criminal intent. Green (2004) states that there are a great many crimes which probably shouldn't be considered to be crimes because they lack a particular mens rea – these are crimes which are crimes regardless of the bad intent of the person committing the crime. These are the strict liability offenses, in which the act itself is a crime, regardless of whether the actor had any degree of criminal intent. This, too, would encompass the issue of music downloading, as so many people do not believe that music downloading, illegally, is wrong (Palfrey, 2009). These individuals who do not know that it is wrong, for whatever reason, perhaps it is because everybody is doing it, so it must not be wrong, are downloading the music without any degree of criminal intent. This should mean that it is not a crime, but Green (2004) argues that, without the degree of mens rea that marks most crimes, these actions are not necessarily immoral either. There is an underlying, individual social norm that surrounds the issue of illegally downloading, and the social norm, increasingly, is that it is not morally wrong (Moohr, 2004). This makes it more difficult to deter the individuals from doing it, and it also has a bearing on whether it is morally wrong to do so. Moohr (2003) makes another argument that goes along with the cost-benefit analysis above. This argument is that the morality of illegally downloading music is not as cut and dried as it first appears. That is, that this morality is not necessarily something that is black and white. This is because there are competing interests in society, and these competing interests must be weighed against one another. On the one side is the interest of the copyright holder. They have something valuable to protect, and they went through a lot of effort to produce this music. They should not have to be forced to give it away for free. Yet, there is a harm to society that might result from a strict enforcement of copyright laws, and that is that the public will not have free access to content. Moohr (2003) does distinguish between the harms that might accrue if the copyright infringement were done by the competitors and commercial facilitators, as opposed to those who are infringing for their own personal use. Obviously, the harm of the first group infringing the copyrights is going to be substantially greater than the second group, so the cost-benefit analysis in this case would be much more weighed towards protecting the copyrights in the first instance than in the second instance. There is another issue with the morality of illegal downloading, and that is the identity of the victims. When one is looking at the individual artist who is being harmed by the copyright infringement, then this is one thing. It seems much more immoral to take money away from the artist by illegally downloading his or her work. However, the identity of another “victim” is much more morally complex. This is the recording industry and the people who are in possession of the recording contract. The fact of the matter is that often the recording contracts contain many unfair terms for the artist, and this is because of unequal bargaining power (Nelson, 2001). The record companies use the fact that there are so many musicians out there who are hungry for a deal, that they would take any deal that they can. This results in recording contracts which are so onerous that sometimes successful artists, such as TLC, end up in bankruptcy court, because the terms of their contracts gave them so little (Nelson, 2001). When one looks at it this way, there is almost a certain kind of moral satisfaction in depriving the industry of their just royalties – if the recording industry is going to be greedy and prey upon the young and up and coming recording artists, to the extent that their contracts should be considered adhesion contracts (Nelson, 2001),then what is the harm in it? It is not like the recording companies have clean hands in the matter. It is simply a matter of doing to them what they are doing to others in a sense. Not that this is a sound basis for morality, but it is a consideration. Conclusion There are many reasons why illegally downloading music is not as morally black and white as it might seem at first. It is not necessarily against social norms, and there are so many victims it is difficult to say who is being hurt. Also, the recording industry doesn't really have clean hands. However, these are justifications that do not really hold up in the light of day. Yes, everybody does it – or, not everybody, a good percentage of people do, and more than half see nothing wrong with it. That does not necessarily mean that it is not immoral – community norms can think that any number of things are ok, but it doesn't make it so. Because a good percentage of people in a Muslim country believe that honor killings are right and just does not make it so, and this goes for the case of illegally downloading as well. Yes, record companies give their artists onerous terms, essentially preying on them and taking advantage of the power imbalance. They probably have it coming to them. But the recording artists don't – the illegal downloading hurts them as well. Therefore, although there are reasons why illegal downloading is morally ambiguous, in the eyes of this author, it is immoral as well as being illegal. References Green, S. (2004). Moral ambiguity in white collar criminal law. Notre Dame Journal of Law, Ethics and Public Policy, 18, 501. Moohr, G. S. (2004). Defining Overcriminalization Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws. Am. UL Rev., 54, 783. Moohr, G. S. (2003). Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, The. BUL Rev., 83, 731. Nelson, S. (2001). Rock and Roll Royalties Copyrights and Contracts of Adhesion: Why Musicians May Be Chasing Waterfalls. J. Marshall Rev. Intell. Prop. L., 1, i. Read More