Thoughts about “illegal” downloading

Jerry Pournelle made an interesting comment on the 10/22/07 episode (118) of This Week in Tech (TWIT): The RIAA in their recent copyright infringement battles is acting like the authorities in Selma, AL Civil Rights Marches in the 1960s – acting in complete accord of the law, but at the same time stirring up public sentiment against them.  Most recently, the RIAA prevailed for $220,000 against a woman in Minnesota.  She was apparently using KaZaa to download and share music; the RIAA agents observed her sharing some 1700 songs, and ultimately convinced the jury that she should pay $9250 for each of 24 selected songs that she shared.  She claims she never used KaZaa, which doesn’t seem terribly credible given the evidence; assuming she actually was, she might not even have known that the default setup shares everything that is downloaded.  I think the jury award is outrageous, and I doubt the RIAA will ever collect even a small fraction of it.  It will, however, inspire the public to reconsider copyright, and that may not work out well for the publishers.
I’ve had customers using KaZaa, which I strongly advise against because so many of the downloads are polluted with viruses, not to mention likely copyright infringement.  Some of these people even thought they were getting music "legally" by buying the premium version of KaZaa.  These people are not criminals – they want to obtain and listen to music using their computers and digital media players.  If you don’t have an extensive music collection or a lot of time, this leaves a simple choice – pay for downloads (if they exists for pay), or use what other people share through a Peer-to-Peer software system (P2P).  Technology makes this possible, but it does run afoul of the civil law of copyright.  Many people disregard the copyright law, either because they don’t care, or because they don’t understand.  Does this make them criminals?  I don’t think so.
Should it be okay for a well-funded coalition of corporations (like the RIAA) to use the legal system to extract huge judgements from individuals for violating copyright law?  If the individuals are getting actual money through this violation, sure, but within reasonable limits.  The punishment should fit the violation. Should it be okay for this same group of corporations to force somewhat less huge settlements from people who don’t want to roll the dice with a jury?  I vehemently oppose that.  The RIAA and MPAA in particular want you to believe that they are losing billions of dollars, and that hundreds of thousands of people are losing their jobs because of media piracy.  They give you the big picture, which includes copying globally, in all kinds of forms, and over long periods of time.  Much of the losses are due to physical pirated copies by organized criminals of CDs and videos in foreign countries like China.  To counteract their theoretical losses, they employ firms that spy and entrap individuals, then use the legal system to force money from them, frequently using circumstantial evidence.  They have appointed themselves as private motorcycle cops on the public digital highway.  I don’t think that should be allowed; at the minimum it invades individual privacy.
Almost every discussion I’ve seen talks about "illegal" downloading.  For me, the word "illegal" seems too strong.  By downloading a copyrighted work (music, movie, TV clip, book, whatever) without permission, you are infringing on the legal right of the copyright holder.  That right gives them the option to simply grant permission to do the download, or to charge you for it, or to refuse it.  In many cases, there is no mechanism in place for you to satisfy the right of the copyright holder.  You still (as of today, anyway) cannot download any of The Beatles albums or songs.  If I want to download Abbey Road, I won’t find it in any "legal" site.  I won’t use Napster, Rhapsody, or one of the other DRM’d sites – any music I download must be playable on both my iPod and any PC I choose to use, which eliminates virtually all DRM systems for me.  I can, however, easily find and download it through BitTorrent, KaZaa, or similar.  And at that point, I will have crossed into "illegal" activity.
Downloading a copyrighted work without the copyright holders permission is not like stealing a CD, DVD, or book, at least in the material sense.  Even if the act were witnessed by police, they likely couldn’t arrest or ticket you.  It would be difficult for them to say for sure that you didn’t actually have "permission", since each digital copy of a work potentially has different rights attached to it.  Usually, no money changes hands, and the original copy of the work is still intact with the person who purchased it.  The only "loss" is theoretical – the publisher might have lost a sale – but that sale might not have ever occured in any case.  It’s really not much different from borrowing the work from the library, except that the library doesn’t have a virtually unlimited supply of copies of the work, and you never return it. 
It seems to me that what you are commiting is a moral or ethical violation.  I am no expert on either morality or ethics, but feel that I have a reasonable grasp of what is right and wrong.  On some level, I can understand that someone has been "harmed" if I download and enjoy their work repeatedly and over a long period of time, without ever buying the work and therefore rewarding them for the enjoyment I received.  Of course, many downloadable things are used once and set aside.  I’m a collector (even though I really can’t afford it) – I have hundreds of books, magazines, CDs, DVD’s, etc. cluttering my home, most of which have little or no resale value, and most of which I could have borrowed or rented.  Many were purchased used or were free to me, meaning that their publisher got no money from me.  I could theoretically pass each work on to thousands of people, and even get some back!  I beliieve that new CDs, DVDs and (hardcover, business and academic) books are generally overpriced, but they do have some value since I can use them repeatedly and over a long period of time.  However, I also beleive that I should be able to preserve and use those works in digital form, perhaps without keeping the original media.
In the publisher’s perfect world, you would pay each time you used a work that they held copyright on.  What a wonderful scam for them – the artist creates a work, gets paid once, or maybe gets paid a small fraction of each use payment received (if the artist had a good lawyer when the contract was written.), and the publisher continues to get paid for years.  How do I convince people to let me pimp them like that?  At least the artist only expends effort once for the work.  And the publisher, after some limited promotion, expends only small incremental effort for each end use, or even expends no effort.  Don’t get me wrong – publishers do a wonderful service to the world by funding the creation of art, and particularly in the case of studios actually pull together many of the resources needed to create the art.  Artists deserve to be paid for their efforts, and maybe even deserve to be enriched by it.  Apparently, only a very few artists actually do get enriched.  Corporations generally enrich only their stockholders and executives.
The public has shown willingness for pay-per-use works in limited situations.  Mostly, they pay to consume new works that are released through limited channels, and it is a function of discretionary income.  In today’s two-class society, most people don’t have much of that.  People will pay for physical recording or books, but again only if they have the money, and if its more convenient than borrowing a copy.  Most audio and video media is available through advertiser supported distribution like network and cable TV, radio and internet sites.  Somehow, even after a publisher has essentially given away their product through an advertiser supported medium, they want you to pay to consume it again, or to consume it if you missed the first offering.  If you dare to try to get around that, they want to sue you – even if they don’t make available a way to consume it again.
Publishers can mass produce art.  But here’s where it breaks down in today’s digital world.  Once the work is created, publishing a work in digital form has nearly no incremental cost.  Distributers and retailers are not essential, but do help for marketing, locating and providing a way to obtain the product.  Reasonably, the money provided should be covering the publisher’s investment plus some profit, since profit motivates the creation of other product.  In our capitalist system, when a large number of people buy something, the seller reaps the reward.  People will pay a reasonable price for a product, even if a "free" alternative is available, so long as they believe that it’s right.  Now almost everyone has the means to create a digital library with their computer.  Computers are fast, disk space is cheap and plentiful, and high speed internet connections make obtaining material trivial.  Once the material is in your library, you can consume it on your time, rather than on the schedule set by a corporation. There’s plenty of money to be made, just not the way it used to be made.  The digital world moves fast, and the sellers have not caught up with the buyers.
For example, I have come to believe that lossless digital music files are necessary for any music I listen to through decent headphones or my home stereo.  Anything less is like listening to a recording from the radio – the music is there, but with greatly reduced quality.  Even 320kbps MP3 files are not "CD quality" – close, but no cigar.  Sure, if all you listen with are earbuds through your iPod or whatever, or in your car, or on your PC speakers, then you won’t hear the difference.  And that’s unfortunate, because there is more there to be heard, and it does affect the overall experience.  However, there are nearly no lossless music downloads available commercially, just downloads with varying lossy encodings, and many with unreasonable "rights management" mechanisms.  The only way to get lossless music "legally" is to buy the CD and rip it to your computer.  Don’t even think about sharing the music, even though you may have a fair-use right to do so.  Lawyers are expensive.
I believe that the failure of publishers to lead with high-quality, reasonably priced digital goods has cost them dearly.  They’ve hoarded their rights like kings with so much gold, and are now discovering that those rights aren’t worth anything if nobody will pay for them.  After all, intellectual property is only a legal concept, and at least in theory the people ultimately control the law – I think corporations actually control the law, but that’s another rant.  The people wanted a product, and the publisher’s response has been too little, too late, for too much, all the while waving their intellectual property rights as protection for their inaction.  Meanwhile, the people figured out how to get what they wanted without employing a payment transfer system, effectively creating a barter economy.   I don’t think there is much "illegal" about that.