Thursday, December 4, 2008

The Debate: Part 1 - Affirmative Opening

This is the debate thread I had to respond to for my final in a class this semester. My response is in the next post, the Negation Opening.
From Alex Gromak

The issue of online piracy, specifically illegally downloading music, is a topic that has been given a lot of attention in the past decade (Note, I will be focusing on the issue of downloading music, although this can be extended to all forms of digital media). Most of this discussion has been one side arguing that downloading music is not illegal, while the opposing side argues that it is. In actuality, downloading music online, commonly through p2p clients, is illegal. The question is: should it be? In this essay, I will show why the current laws that make downloading music illegal are flawed, and how the efforts to eliminate this issue are not effective. In doing so I will argue that we need a new, more accurate definition of Internet piracy and that the laws must be changed to better suit the issue at hand. Finally, I will demonstrate why organizations like the Recording Industry Association of America (RIAA), who hunt down and prosecute illegal music downloaders, are not working, in any sense, to solve this problem; not to mention the possibility that their own efforts to find illegal downloaders may be illegal, and their results unethical.

To begin, let’s look at some ways in which the current laws that deem music downloading to be illegal are flawed. Roy Furchgott, in The International Herald Tribune, on September 4th of 2008 explains that in the United States, a case pitting Sony Corporation of America against Universal City Studios, known as “The Betamax case” allows people to record CDs to their iPods. Furchgott summed up the case’s outcome by saying, “essentially, the ruling said people could record copyrighted material for personal, noncommercial use.” First of all, “noncommercial use” makes it sound like as long as you are not selling what you copy from the CD, you can do whatever you want with it. Which would include sharing it online using p2p clients. This obviously is not the case, but it does sound like that would follow. In any case, Furchgott then makes an astute point; one that I completely agree with and believe is the strongest point against the nature of these laws: “Suppose you have a vinyl record and you want to hear it on your iPod. Does the recording have to come from your own album, or can you download a copy? […] After all, you have paid for the right to hear the song; does it matter where your specific copy comes from?” In this situation, if you download the song, the means by which you acquire the song is illegal. But you have already paid for the same exact song. Why does it matter how you acquire it if you have bought it? This moves the issue of legality solely to the means by which it was acquired, with no attention being made to whether or not it was purchased. This seems absurd. Why should it be legal to find and utilize the equipment to record a digital version from your own copy of the vinyl but illegal for you to simply download the same album that has already been digitalized? Either way, you have done the same two things: (1) you have bought the album, and (2) you have it digitally. Why should it matter how you manage to get the digital version, if you have already bought it? I argue that it doesn’t and that it shouldn’t.

You can imagine a similar dilemma with a collectible. Lets say I buy a limited edition collectible version of an album. I want to keep it sealed in the plastic since collectibles are always worth more if kept in mint condition. So I have legitimately bought this album. But how can I get the songs if I don’t open it? Why should it be illegal to download this album since I already bought it? Again, this goes back to the method of how it is acquired, it has nothing to do with theft, which is what this issue is supposed to be all about. If I were to ask: what is the main issue with online piracy? Presumably the answer would be something along the lines of: obtaining some digital media without paying for it. Essentially, online piracy equals online theft. But if I have bought the album, and I am legally allowed to copy it for personal use, how can I be stealing it by downloading it? Stealing implies I have not bought it, but I have bought it. This is a fundamental problem with the current definition of online piracy.

I will now show that the RIAA’s involvement in this issue is at times illegal, in some cases unethical, and is absolutely ineffective; therefore establishing that a new method of dealing with online piracy is needed. Before addressing the unlawful/unethical aspects, let us simply look at the common methods the RIAA use. According to Times Staff Writer Jay Cridlin, on March 19th 2007, the letters they send out to the accused music thieves threaten a lawsuit fining them at the cost of $750 per song. To avoid this, they are asked to settle for a sum of reportedly around $4,000. Their tactics have been regarded by critics as nothing but bullying. As Corynne McSherry, a staff attorney with the Electronic Frontier Foundation said, “That’s exactly the intent of it: 'Pay early, pay quickly and make this campaign easy for us, rather than fighting back.”
So where does all this money the RIAA is getting go? To the artists or record labels of the “stolen” songs? No. It goes into the RIAA’s funds for more downloader hunting. Since all the money accumulated by the RIAA goes right back into the RIAA’s pocket to enable them to hunt for more illegal downloaders, the only purpose this could be seeking to achieve is deterrence. If the goal were to give the money back to the deserving artists or record companies that are losing out from online piracy, the money the RIAA acquires should go back to them. But because it doesn’t, the RIAA’s goal must not be designed to reimburse those who are suffering from illegal music downloads, namely the artists and record companies. Therefore the RIAA’s actions serve merely as a deterrent against others downloading music illegally. As I will show later on, this deterrence is not working either, and thus, the efforts of the RIAA are a complete failure.

Now lets move on to address some ways the RIAA has acted unlawfully and unethically. Simon Hayes of The Australian, on November 7th 2006 said “Music and software industry lobby groups have been accused of touting ''absurd'' piracy figures in an effort to get tougher copyright laws and more police resources to enforce them.” On July 5th 2007, TECHWEB stated that the target of a music file-sharing lawsuit was fighting back, claiming that the investigation tactics used were illegal. “Court documents claim that the plaintiffs in the original lawsuit ‘agreed between themselves and understood that unlicensed and unlawful investigations would take place in order to provide evidence for this lawsuit, as well as thousands of others as part of a mass litigation campaign. On information and belief, the private investigations company hired by plaintiffs engaged in one or more overt acts of unlawful private investigation. Such actions constitute civil conspiracy under Texas common law.” Chris Ayres of The London Times, wrote on October 5th of 2007 about a specific lawsuit case dealing with illegally downloading music. He states, “A single mother from Minnesota was last night fined $222,000 - about five times her annual salary -for swapping music on the internet…The verdict means that Jammie Thomas, a 30-year-old Native American, will be ordered to pay $9,250 for each of the 24 songs…that she shared illegally. The fine will almost certainly go uncollected and is expected to drive Ms. Thomas, who has two children, into bankruptcy.” Ok, illegally downloading music is bad. Fine, but how can one justify putting this woman and her two children into bankruptcy as a result of it? What kind of life are these two young children going to have as a result of this? You may think this is an Appeal to Pity but in order for me to be committing such a fallacy, my argument must be founded solely on the appeal to your pity for the woman, and specifically, her two children. But I do not believe I am doing so. My argument lies in the fact that it is unjustifiable to cast a woman into bankruptcy for something as trivial as sharing music online. The impact it has on her and her children acts only to show the ridiculousness of what results from the current online piracy laws.

I will now show that the efforts of the RIAA have not even served as a deterrent for online music downloading and therefore certainly have not been effective in stopping it altogether. David George-Cosh, of The Globe and Mail in Canada reported on July 31st 2007 that the “fourth annual Digital Music Survey, which polled 1,700 people in the U.K., suggests that illegal music is more popular than ever before, with 43 per cent of respondents claiming that they are illegally downloading tracks, up from 36 per cent last year and from 40 per cent in 2005. This year, only 33 per cent said the risk of being prosecuted was enough of a deterrent to stop them from downloading unauthorized tracks, compared with 42 per cent in 2006. The findings also show that 18 per cent - nearly one in five respondents - said they planned on downloading more illegal music, up from 8 per cent in 2006.” Even the RIAA has admitted their efforts are not working. Chris Ayres of The Australian, said on October 5th 2007, “According to the RIAA, the number of households that have downloaded music with file-sharing software has risen from 6.9 million in April 2003 to 7.8 million in March [of 2007]…Fred von Lohmann, a lawyer who specializes in intellectual property at civil liberties group the Electronic Frontier Foundation, says ‘the RIAA’s legal campaign is having little effect.’”
On July 28th 2007, Fred Reed of The Washington Times compared the music industry’s campaign against illegal downloading to the war on drugs, calling it “a permanent and unwinnable struggle.” He then says, “The war isn’t working. It isn’t working partly because it is so very easy to download or copy digital material. And it isn’t working partly because the public doesn’t care. During Prohibition, illegal drinking was common and accepted, except by law enforcement. Today, countless respectable people smoke marijuana, and only cops care. And no one cares about music downloads except the RIAA. It is very nearly impossible to enforce a law without the support of the population.” He then asks, “thirty years from now will the RIAA still be suing people right and left in a desperate attempt to stop the unstoppable? It is probably not a good thing to have laws that are both unenforceable and widely ignored. The alternative is to come up with a way of managing copyright and royalties that recognizes reality.”

This is similar to what Barrie McKenna of The Globe and Mail in Canada said on August 28th 2007: “For years, the recording industry focused almost exclusively on trying to stamp out piracy by suppressing demand through lawsuits…The industry’s dilemma might be a lot more manageable today if it hadn’t been so late to embrace digital music as the innovation that it is, rather than a threat to be thwarted at every turn.”

I have now shown how the current laws dealing with downloading music are flawed in that they deal more with the method of acquiring music rather than the theft of music. I have also shown that the efforts put forth by the RIAA are not only at times illegal and unethical, but they just simply are not solving the problem. We need a new system; one that provides us with a new way of understanding and defining this issue that is a better and more accurate account of what we really mean by saying “online piracy” along with new laws to abide by this new definition.

My plan consists of redefining the term piracy so that it applies only to what we actually mean when we use the term as well as developing a new system for the digital media world to replace the RIAA. At the very least, I propose new laws to change the definition of piracy to read that downloading or copying (provided it is for personal use only) music, or any other kind of digital media, is to be considered “piracy” only if such media has not already been purchased by the downloader. The ultimate however, would be to legalize file sharing all together (as I will address below).

As for alternatives to the RIAA, more organizations like Creative Commons (a non-profit organization working to expand the range of digital media that is available for others to legally build upon and to share with other) need to be implemented and more organizations compelled to work with such companies in order to increase the legality of file sharing. Obviously legalizing file sharing all together will eliminate the unwinnable war the RIAA has tried to fight. This would also do away with a need for such an organization as the RIAA altogether. However the question remains, how will the artists get their compensation? Well, first of all, as I addressed above, their not getting it now since none of the proceeds the RIAA gets goes back to the artists, labels, or record companies. But besides that, as the Electronic Frontier Foundation (the leading civil liberties group defending people’s rights in dealing with digital materials) has suggested, if we legalize file sharing, we could compensate the artists, labels, and record companies by implementing a surplus in internet service provider fees. Indeed, forcing these solutions is not only the best solution against such an unwinnable/unstoppable war, it is the only solution, unless we want to keep things the way they are.

The agent for implementing these changes will be the World Trade Organization. Funding will be minimal since the changes only involve creating new laws to replace the old ones defining Internet piracy and/or determining the legality of downloading altogether. These plans will clearly fix the problems since they all deal with definitional problems. The laws currently result in inconsistencies with what we mean when we correlate the term “stealing” with the word “piracy.” Therefore, changing the laws as I have described will result in the disappearance of such inconsistencies; problem solved. Also, if file sharing were to be legalized completely, then the problems being raised as a result of the RIAA would also disappear because such an organization would no longer be needed. Also, if the Internet service provider fees were increased to account for the compensation of the artists being “harmed” from downloaded music, this would dismiss the issue that the artists are loosing money from the legalization of downloading. Again, problem solved.

Even if only the new laws defining piracy are implemented, this will still result in advantages. By changing the way we define piracy as I have stated above, we can focus on what we are really concerned with when it comes to internet piracy: theft. Right now, the focus is simply: anything you download is illegal. Under my plan, downloading when you have already bought the content will not be illegal. This will allow the officials to focus on those who are truly stealing what they download. If we legalize file sharing all together, we obviously have much more freedom when it comes to what we have legal access to on the Internet. My plan also accommodates for compensating those who are losing money as a result of the way things are now. All in all, this plan fixes the problem the whole “file sharing is illegal” debacle at the root of its true causes.

My response to Affirmative Opening

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