It's simple: theft of music is wrong
By Professor Andrew Beckerman-Rodau
Suffolk University Law School
120 Tremont Street
Boston, MA 02108
Copyright 2000 NLP IP Company
[This editorial was originally published in the National Law Journal on October 9, 2000]
How many people would walk into a car dealership and steal a car. Most people
do not engage in such conduct. They view it as wrong and unacceptable because it
is contrary to generally accepted societal norms. Why then will the same people
freely steal copyrighted music via the Internet. Is this dichotomy a function of
wrong-headed intellectual property law that unjustifiably extends property
protection to things that should be in the public domain. This argument is
raised by many individuals who justify downloading music from the Internet in
lieu of paying for it.
Intellectual property laws, which include Copyright law, are premised on the
notion that economic incentives must be provided to individuals to encourage
creativity which ultimately benefits society. In our market economy few people
would engage in creative, or other endeavors, absent at least the potential for
remuneration. Even if individuals desired to create merely for the sake of the
creative process, they need compensation to provide for the necessities of life.
Furthermore, it takes money in addition to time to create things. Why should
Internet users get a free-ride by downloading and listening to music they have
not purchased. Why shouldn't they be expected to shoulder some of the cost to
create the music. One reason may be that Internet users don't view their actions
as costing anyone money. Additionally, they view it as an entitlement like
taking a pen from work or using an office phone for a personal phone call.
Many Internet users advance the theory that they are justified in freely
taking music from the Internet because the music industry charges too much for
CD's. This is an odd argument to make in a country which champions the concept
of private property. The most basic right a private property owner has is the
right to control access to and use of his property. It is up to the property
owner to decide who will use his property and at what cost. Therefore, a music
owner should be allowed to control his music which is his intellectual property.
Failure of the law to support a property owners choices undermines a basic value
of our legal system which is to protect the property rights of individuals.
Members of the public do not have the right to steal property if they feel the
price is too high. A contrary approach would allow motorists to respond to high
gas prices by stealing gas. This is not to suggest that business enterprises
should be allowed to engage in anti-competitive conduct such as price fixing or
monopolistic market manipulation. However, the remedy for such conduct are
antitrust and unfair competition laws like those recently asserted against
The need to protect intellectual property, such as music, must be balanced
against making certain the law does not hinder development of the Internet as an
economic enterprise. If it hinders development it will be ignored. This promotes
lawlessness which is counterproductive since it creates an unstable business
environment which increases the risk associated with long term capital
investment in Internet related enterprises.
The law could be amended to provide for compulsory licensing of music with
the government setting reasonable royalty rates. To some extent this has already
been done with regard to cable television. Despite the surface appeal of this
approach, compulsory licensing of music seems contrary to private property
rights. A property owner typically has dominion over his property. Compulsory
licensing significantly dilutes that dominion. An alternate approach would
involve levying an excise tax on computers and computer equipment. The revenue
could be distributed to music owners as compensation for third party use of
their music on the Internet.
Marketplace solutions, in lieu of changes in the law, are another option. For
example, inability of copyright owners to obtain adequate compensation for use
of their music led to the creation of ASCAP and BMI which engage in blanket
licensing of copyrighted musical works to radio stations and business
enterprises. Although not perfect, this arrangement provides an efficient method
of compensating music owners without hindering distribution and use of such
music. From an economic perspective it can be argued that this voluntary
arrangement is successful in light of its widespread acceptance. This voluntary
blanket licensing model could be extended to Internet music sites such as
Napster and MP3.com.
This article is reprinted with permission from the October 9, 2000 edition of
The National Law Journal. © 2000 NLP IP Company.
top of page