The events of early October, 2007 may herald a new age of respect for intellectual property (IP) rights. The first trial on peer to peer music file sharing pits the major record companies against a woman accused of copyright infringement, an act for which the U.S. Federal Court awarded a $220,000 judgment against her. The defendant, Jammie Thomas, brought into the courts a matter that has long been awaiting justice: the need for public respect for intellectual property. Although well within the limits of the law, the damage award against Thomas is regarded as punitive by some; however, punitive measures are warranted, since a mere slap on the wrist by the courts would have been insufficient to effectively deter file sharing, and prevent the further deterioration and disregard for IP rights.
The lament of the recording industry, which blames slumping record sales on the practices of people like Thomas, has fallen on deaf ears. The fact remains that providers of file sharing software are exacerbating the problem. Unfortunately, as past trials indicate, pursuing these companies is a fruitless endeavour. The real problem is the engrained disrespect for IP rights, a phenomenon to which the record industry has contributed greatly. The deteriorating quality of the music and the ever increasing prices of CDs, and consequently the higher profit margins of the record industry, coupled with the ease of accessing music without paying for it, have deeply alienated the public, which is using music file sharing as retribution against the recording industry. This backlash however, does not justify the unravelling of ethical judgment. Robin Hood type justice which condones stealing from “the rich” because they are rich only exacerbates the already corroding moral compass of modern society in the digital age. Ease of access does not equate to a right to steal and it is precisely the notion of theft of intellectual property in the digital milieu that is the sadly overlooked primary issue.
The defensive argument is always couched in tactile terms: downloading music without paying for it doesn’t feel like stealing. It is precisely the intangibility of intellectual property which gives some the right to justify such actions. Another argument made by those who indulge in this practice is that sharing music without paying is not stealing because they regard theft as an act which denies the original owner the use of the stolen object. No such consequence is seen to befall the music industry, or for that matter the IP holder. Once again, the argument turns on economics – the industry is not worse off because it has more where that came from, thus nothing was in fact lost.
Both arguments demonstrate a deep lack of respect for intellectual property rights. According to Miriam Webster, “stealing[1] may apply to any surreptitious taking of something and differs from the other terms[2] by commonly applying to intangibles as well as material things.” She further defines “theft” [3] as “the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” Some have argued that the lack of respect for intangible property stems from the public’s exclusive association of “stealing” or “theft” with tangible property. However, although the finer points of dictionary definitions may be lost on some, the act of “taking someone’s life” or “depriving one of her rights” are commonly used in the vernacular to describe the removal of intangible property. These phrases counter such arguments and demonstrate that, despite their intangible nature, life and rights are in fact revered above tangible property and are understood to be morally wrong. Popular respect for intangible property thus exists, however, instilling the same respect for intellectual property has evolved into a more formidable hurdle.
Despite the existence of copyright protection for hundreds of years, the explosion of a new technologically driven age has catapulted the prominence of intellectual property rights to previously unfathomed heights. Gaining popular respect for intangible property is crucial to the peaceful development of the technology age and rests with educating the public (especially the young generations) that tangible and intellectual property are equal, and the act of taking a physical object is equivalent to the act of depriving another of her right to her personal intellectual property.
Jammie Thomas may be financially ruined in the wake of the judgement against her, but her decision to pursue her case in the courts will perhaps one day be heralded as the day the tide of disrespect for IP rights began to turn in the right direction.
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[1] Miriam Webster Dictionary – accessed online at URL: http://www.merriam-webster.com/ on October 11, 2007.
2 pilfer, filch, purloin
3 Miriam Webster, supra, note 1.
[1] Ibid.
[2] pilfer, filch, purloin
[3] Miriam Webster Dictionary – accessed online at URL: http://www.merriam-webster.com/ on October 11, 2007.
One Response
The solution is education
My colleague’s argument is valid, but it’s based on two flawed assumptions. First, she assumes that individuals who download music do so intending to share music as a form of retribution against the recording industry. There is no proof of this. Arguably, individuals download music because it is accessible and inexpensive. The argument that “wealthy music companies don’t get hurt” is often presented as a justification after the fact, rather than as the motive behind downloading. This justification shows ignorance about why IP rights are protected. Thus, punishment amounting to undue hardship is not only unjustified, it’s also fruitless if the goal is deterrence. Forcing a working woman to pay a sum that is five-times that of her annual salary, for an act that most individuals don’t even realize is an IP infringement, doesn’t help to remedy the “disrespect for IP rights” because it doesn’t teach infringers about IP. Deterrence would be better achieved through educating people about IP rights and the reasons behind granting such rights. One way to achieve this goal would be to post information about IP followed by a test before infringers can access music and other IP on enabling websites.
Second, my colleague assumes that pursuing enablers of file-sharing is fruitless. The Copyright Act allows right-owners to pursue infringers and enablers of infringement, and cases such as Metro-Goldwyn-Mayer Studios and Universal Music Australia have shown that such actions can be successful. Thus, damages should not come solely from infringer, but also from enablers.
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