Why File Swapping should be Legal?

It is not a Crime
There are other ways to make money
File Sharing Does not Hurt Media Sales
Media Organisations hunt File Sharers and Prosecute Them
Put it into Perspective

So why should file swapping be legal? Let’s examine the reasons one by one.

It is not a Crime

The primary reason why file swapping should be legal is because it’s not a crime, at least not an ethical one. Sites or services that point to where to download the content are just referencing the presence of the information. Referencing or linking is never a crime. It’s like instructions on actions like how to prepare bombs, where to find illegal drugs, how to cheat various systems, or where to find stolen goods. By itself this information is not a crime to know, because it’s protected speech. So does pointing to a copyrighted resource.

So now we’re left with the question whether sharing a copyrighted work (or downloading it) is an objectively criminal action. The answer is again “no”. It’s not a crime since the originator of a copyrighted work that was made public cannot prevent non-commercial copies from being made and distributed. As of today, many countries passed such laws, but these laws are unethical. Sharing of copyrighted work is common-place, and many of the people who do it (including many children) do not feel they’re doing something wrong, or feel guilty about it. So it is ethical, and moral and should be legal.

Note that selling copies commercially (as in stores of pirated media), can be prohibited by the copyright holder. But non-commercial copying (from friend to friend, or via Peer-to-Peer services) cannot.

Several respondents to early versions of this article, claimed that I should prove that copying or receiving a copy of an artwork that was released to the public is ethical and moral. Well, I’d like to ask those critics “Why it is not moral?”. And they’ll probably have no answer.

According to the definition of Ethics and Morality that I accept (presented there as “Constitutionality and Beneficiality”), then file sharing is ethical, because it does not involve an initiatory force, threat of force or fraud against one’s property, which as I demonstrated here does not include the so-called “intellectual property”. Moreover, it is also moral or at least not immoral, because it does not harm or prevent the filling of human biological needs.

Copyrights are not an absolute “nature-given” right like the rights for life and freedom. Instead, they are a state-enacted monopoly that is meant to protect the originators of artworks from abuse by commercial distributors. However, due to the computers and Internet revolutions, it makes no sense to try and prevent non-commercial digital distribution of them.

There are other ways to make money

There are many other ways in which originators of media can make money even if they allow free distribution. First of all, they can regulate the commercial use of the works. That way, commercial entities (such as Music stores, online music download services, D.J.’s in charge-for-entrance parties and commercial radio stations) must pay them royalties.

Another financial option is to restrict derivation of the work. That way, persons who wish to build upon the work or include substantial parts of it in their own must consult the originator.

Another option (of less substance) is to require attribution for the originator. That way, people who wish to build upon a work without crediting the originator must purchase permission from him.

These three methods together give enough options for an artist to make money off his art, without restricting non-commercial copying.

This is naturally excluding live performances of artists of various sorts, like Rock concerts, that are also a huge potential source of revenue, as well as sales of Merchandise. The Grateful Dead made more money on merchandise than they ever did on selling records.

File Sharing Does not Hurt Media Sales

Many people erroneously believe that file sharing hurts media sales. However, there is a lot of evidence to the contrary:

  1. Legal Music Downloads Increase in 2005

  2. Slashdot Article about CD-R’s and MP3s not hurting record sales in Australia

  3. CD Sales in Israel went up by 15% in 2004.

  4. Success of the single “No Meaning No” by Chuck D and the Fine Arts Militia that was released under a liberal Creative Commons license, that allows free distribution.

  5. The U.S. band Wilco released their album “Yankee Hotel Foxtrot” as mp3s online after their record label demanded they remix their songs. After a different record label decided to distribute their songs instead, and distributed the album, it became their best-selling album, selling over 500,000 copies.

  6. The Movie “Pirates of the Caribbean” was heavily “pirated”, yet also had very successful sales and was incredibly profitable.

  7. Some new artists that published albums and singles in recent years, have proven to be very successful commercially, despite the fact that their songs are commonly available for download on the Internet, via Peer-to-Peer networks or otherwise.

Media Organisations hunt File Sharers and Prosecute Them

You’ve probably all heard stories of the Media organisations’ witch-hunt against file sharers. From suing a female 12-years-old honour student, to a grandpa in his 70’s, to a college player of American Football. They also were closing many online sites. In New Delhi the police gave the media companies an unlimited warrant to raid the houses of people suspected of media sharing.

Lots and lots of “1984”-style terror. And for what? For preventing the supposed loss of sales by a limited private sector of the industry? For preventing a practically costless operation of distributing an mp3 that can be done by the “criminals” at the comfort of their homes?

In a presentation he gave, Richard M. Stallman (of the Free Software Foundation and GNU project fame) gave another good reason why it wasn’t unacceptable. He said that when he was a kid in school, his teacher asked the children to share their sweets with the other children. And now, suddenly they have to tell them something like “No, Tommy, don’t share your music/software/videos/etc. It’s illegal!”.

What’s a child to feel in this case? Sharing is a nice part of living in a friendly society, and there’s no reason we should prevent it, or else we ourselves will become more and more selfish.

Put it into Perspective

Let’s put things into perspective. What the media companies do is sell entertainment to people. Entertainment. They don’t save lives and the economy does not depend on them, as there are many other sources of entertainment a consumer can choose instead that are available independently.

The worst case (and extremely unlikely) scenario is that no-one pays for online media, and everybody just share and download music from the Internet. Would that be a bad scenario? No, the world will go on. Without people making money off selling media, but nevertheless.