The Ethics of Music Sharing

Same Day Music
Music Equipment and Guitars

Recently, the RIAA, MPAA, and a host of other copyright owners have launched public relations campaigns to convince the public that downloading MP3s is immoral, damaging, and probably responsible for terrorism. People tend to either accept these industry claims at face value or respond, "Screw the RIAA, music wants to be free!"

In hopes of navigating a more reasoned course between these two extremes, this article examines some of the more common claims pertaining to the morality or immorality of unlicensed music downloading.

"Downloading MP3s is stealing."

Despite the RIAA's rhetoric, the copyright infringement involved in downloading an MP3 is substantially different than traditional theft. If I steal a CD from you, two things happen. First, I now have a copy of the CD. Secondly, you no longer have that CD. The MP3, on the other hand, is a case of unauthorized copying. If I copy your music, we both have a copy of the music and you are not made any worse off. In other words, I benefit and you remain the same. You are only harmed if, rather than doing my unlicensed copying, I would have paid you for authorization to make a legitimate copy. Thus, at the worst I have deprived you of potential profit. At best, I have increased the value of your copy by increasing the cultural penetration of your song. Unlike physical property, intellectual property has no natural scarcity.

The law treat copyright infringement and property theft differently as well. Theft is a criminal act and can lead to fines or jail time. Copyright infringement is generally a civil act and leads to damages and injunctions.

If we analogize intellectual property infringement to physical property, trespassing fits much more closely than theft. If I cut through your yard rather than walking around the block, I have gained something at minimal cost to you. You might have a right to sell me some kind of "walk through my yard" license — but by cutting through your yard I am certainly not "stealing" your yard. Thus, rather than saying, "You pirates are stealing my property," it might be more appropriate to say, "Hey, kids! Get off of my lawn!"

Downloading MP3s is not the moral equivalent of theft.

"Pirates are blood-thirsty killers."

Alternatively, pirates are awesome.

"Downloading MP3s is a crime."

Like all of these, this statement is a bit misleading. There are criminal penalties under the copyright laws. However, they do not appear to apply to basic, not-for-profit file sharing. The Piracy Deterrence and Education Act of 2004 has been approved by the House and would make many file sharers felons and authorize $15 million dollars to prosecute them. This bill is currently hanging out in the Senate and, as far as I can tell, isn't going anywhere. So you know, the congressmen who sponsored this great use of federal money is:

  • Representative Lamar Smith, TX-21
And his cosponsors are:
  • Rep Berman, Howard L. [CA-28]
  • Rep Bono, Mary [CA-45]
  • Rep Coble, Howard [NC-6]
  • Rep Conyers, John, Jr. [MI-14]
  • Rep Hoyer, Steny H. [MD-5]
  • Rep Meehan, Martin T. [MA-5]
  • Rep Otter, C. L. (Butch) [ID-1]
If you forget this list, you can find most of their names here.

Of course, even if downloading MP3s is probably not criminal, it certainly has some civil problems. There are a number of arguments to say that it should not be an infringement — but none of them are particularly great, and none of them are particularly likely to succeed in a court. So, while downloading MP3s isn't likely to get you put in jail, it might still be expensive. The copyright statute has extremely heavy statutory penalties for willful infringement. We cannot say that copyright infringement is wrong because it is a crime, because it (probably) isn't. (We will look at whether it is illegal later.)

"Downloading MP3s drives up the cost of music for everybody else."

This claim essentially says that if you're getting music for free, somebody else will have to pay for it. This makes a lot of sense for things like food or furniture, where additional consumption correlates with additional costs. However, because an additional copy of a song adds no costs to the copyright owner, the economics of infringement work differently.

If you download an MP3 rather than buying a CD, the profit of the recording industry decreases by some fraction of the cost of that CD. In response to its loss, the recording industry might raise prices on other CDs. Of course, if the recording industry thought it could maintain sales after raising prices, it would not wait for you to pirate its music. The recording industry is not trying to maintain some minimal amount of profit necessary to bring music to the masses. They want to extract as much profit as they possibly can.

On the other hand, if you download an MP3 of a song that you would not pay the price of a CD for, the recording industry loses nothing except a potential sale. If the recording industry lowers its prices, it could capture some of these sales lost to piracy.

Record companies had phased out singles because a full album had a higher profit margin. However, increased P2P file sharing demonstrated a consumer unwillingness to buy a $20 CD for one song. Consequently, the record industry had to agree to a single-song download service like iTunes. Thus, if people simply want to buy one good song from a mediocre album, they can now save $19 thanks to music piracy.

"If everybody downloaded MP3s, there would be NO MUSIC!"

Of all the claims, this is the most ridiculous. We have had music ever since people figured out how to hit rocks with sticks. Some of the most popular music predated any kind of copyright protection by years. Some artists would not produce as much or in the same manner — but most people don't write music for profit. File sharing does not threaten music itself — merely the dominant methods of music distribution.

"If you listen to music, you should pay for it."

This claim also has a shadow of truth in it. If an artist produces music that people enjoy, that artist should be compensated. The person who compensates that artist might, directly or indirectly, be you. However, if you take this claim at its full breadth, you would have to pay for the background music in a shopping mall or worse, in an elevator. It would be unethical to change the radio station before an advertisement. Yes, the artist should be compensated — but there are a host of ways to do this that are compatible with P2P file sharing.

"Downloading MP3s is illegal."

Assuming that you do not own a legitimate copy of the music, this is almost certainly true. (I won't go into any specifics of the law — and if you want actual legal advice on this, get a real lawyer.) However, before we decide that downloading MP3s is unethical based on its illegality, we should ask what else is a violation of the copyright act. Downloading MP3s is just as illegal as other violations of copyright law, such as:

  • Singing Happy Birthday in a restaraunt
  • Recording a movie with a VCR and watching it twice
  • Writing Harry Potter fan fiction
  • Accessing Harry Potter fan fiction on the internet
  • Showing a (legitimately purchased) DVD of a Disney movie to kids in a day-care center
  • Reading a forum that includes an article pasted from another website
  • Saving something you found on the internet on your hard drive
  • Renting a movie and watching it with a group of friends
So, presumably the unlicensed downloading of MP3s does violate the copyright law, along with the vast majority of the internet. (So does that DDR competition you secretly entered in college. That's right, I found the video on YouTube.)


Ultimately, the conclusions are up to you. There are some problems with "music piracy" — though they're not as severe as the RIAA pretends they are. There are also some issues with what percentage of your CD cost is going to pay lobbyists, though that's another topic. There are also some significant benefits to having a robust and widely adopted file-sharing system. Weigh the advantages and disadvantages. Make up your own mind.