Monday, February 14, 2005


downloading stuff

Surfing around the 'net, as they call it, I came across this post on the penalties for file-sharing, which prompted me to rant on and on in the comments section. Here's some of that rant.

Basically, as things stand the penalties for downloading copyrighted material far outweigh the penalties for just walking into a store and shoplifting. The author of the post made the point that this might be justifiable as a way a of detering downloading and shoplifting equally -- if you're much less likely to be caught downloading, it might make sense to have higher penalties in order to achieve an equal deterent effect.

However, is this how our criminal system is supposed to work? Perhaps high penalties for downloading would equalize the determent of downloading and shoplifting, but so what? The point isn't to equalize determent between crimes, but instead to extract the maximum determent for each crime without making the penalties completely out of proportion with the crimes themselves. You could really deter jaywalking if you applied the dealth penalty (think Singapore) but who wants that? And who cares if jaywalking is being detered more or less than public nudity? I'd prefer we deter each crime (except perhaps public nudity) as much as possible without making the penalties unreasonably onerous.

And I think current penalties for downloading copyrighted material are in fact unreasonably onerous. I say this not just because $14,875 is an awful lot to pay for a DVD of Shrek 2. I say it because I believe that, in a fundamental sense, downloading copyrighted music (or movies or anything else) is very different from stealing it.

I believe that a very high proportion of downloaded material -- 95% or more -- is stuff that the downloader would not otherwise buy. Record companies act as if each album downloaded is a CD unbought, and hence lost revenue, but a person will download a lot more albums at $0 than he or she will buy at $15. Back in my Napster days I used it almost exclusively to get pop singles I would never think of buying, and listen to bands people had told me about but that I wasn't ready to drop money on. Napster replaced my CD buying hardly at all (I still bought CDs when I wanted complete albums) and, since it exposed me to much music I wouldn't otherwise have heard, it may actually have increased my music purchases.

This is all to say that the relation between downloading and buying is ambiguous at best, and certainly is nothing near the 1-for-1 that record companies would have you believe. In this context, I see inflated penalties as particularly misguided.

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