What's Right is Rights: Piracy is Theft

Word is getting around that the RIAA seems to be stepping away from lawsuits as a key strategy against piracy. Lawsuits were never going to be the solution, as other major rights-holders, like those working together through Arts+Labs, will attest.

That’s not to say that we’ve all stopped believing in creators’ rights or that we no longer think piracy is a real problem. On the contrary: the creative economy depends on creative rights.

We all understand the demand for easy access to inexpensive content, and the people who produce that content – artists, movie makers, journalists, musicians, songwriters and more – are eager to deliver it. But, as it turns out, they want their rights to be respected.

Unfortunately, some consumers get confused about the difference between demand and entitlement. A recent TechDirt screed illustrates this entitlement mentality. Writing about Joel Tenenbaum, who was sued for pirating and distributing songs online (a jury found that he had willfully infringed copyrights and awarded a judgment far larger than had been asked), Mike Masnick wrote:

“Tenenbaum’s actions robbed no one. No one has a “right to be paid for their work.” You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that. But that’s the market at work. Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA’s logic here, I have just “robbed” the pizza place of its “right to be paid” for its work. There is no right to be paid. Only a right to try to convince people to buy.”

Of course, Tenenbaum did choose not to buy the music. But that didn’t seem to stop him from taking it anyway. He just chose to take it without paying for it. And then he let other people take it, too. To most of us, a marketplace gives the consumer the chance to buy a product or not. But, apparently, in the pirate’s world, the way the “market” works is that you get a choice between buying and stealing, as if the two are equally valid options.

Let’s cut the nonsense out of his analogy: Tenenbaum didn’t choose the “deli.” He wasn’t even interested in the free samples that the “pizza shop” offers. He wanted a bunch of full slices of pizza, and when he thought no one was looking, he took them. The way Masnick tells it, if you don’t create something that people want to buy more than they want to take for free, it’s your own fault:

“Deserving to be paid for your work and a nickel gets you five damn cents. You earn money by offering something in the marketplace that people want to buy. You didn’t do that.”

So, apparently, Joel Tenenbaum is simultaneously a “consumer” and somebody who rejected what the music industry offered. And yet…

“You made the conscious decision to declare war on your best customers.”

I’m not sure in what regard Tenenbaum could be considered one of their “best customers.” It was my understanding that customers paid for things. That puts a fat asterisk on statements like this:

“The idea that not giving money to the RIAA somehow means less music will be brought to the public is laughable. It’s not a fact, it’s pure propaganda. Thanks to these same new technologies that the RIAA has tried to kill off, it’s easier than ever for bands to create, promote and distribute music. And because of that, there’s more new music out there than ever before.”

It’s true, now that the technological barriers have dropped so far, musicians are giving away tons of songs for free! And yet, Joel Tenenbaum didn’t choose to download one of those songs. He wanted something that was more valuable to him… though, apparently, not so valuable that he would pay for it.

Musicians often give away their content for free, most of them with the expectation that they’ll be repaid in other ways. Some of those models – for instance, giving the music away for free and making it up with concerts or merchandise – do well for some artists (though, it’s hard to see how a songwriter makes money in that model). That’s their right, and creators should be free to choose their business model.

But for those creators who don’t want to give tracks away for free, it’s high time for pirates and their enablers to stop rationalizing theft by imagining that they’re somehow doing their victims a favor.

Creators have a right to be paid in exchange for their work, if they make it a condition of using their work, just as pizza makers can require you to pay them before they give you their pizza, and just as car rental agencies can require you to only use their cars in specific ways while in your care.

Lawsuits may not be the solution to getting broader respect for these intellectual property rights. That solution really is going to be found in new technologies and new business models.

But let’s be honest in the meantime: Piracy is not just another consumer choice. It is theft.