Category: Culture

A reader from another country writes:

This is another of those music copying questions. There was an old recording of a book on LP in the 1970’s (I think). As far as I know, the record is no longer for sale. You can buy second hand versions at some cost over the internet, but they seem to be very limited in number.

Anyway, a man has put mp3’s of his old LP on the internet. He’s not selling them and says he’ll remove the files if they’re ever re-released by the record company. In this situation, is it licit to download these files, with the knowledge that the quality is poor and that no-one is being deprived of their fair wages from it? A person I know has made a CD of the mp3 files for me and I would like to hear them, but I don’t want to steal!

Not wanting to steal is the right attitude to have! Kudos!

Unfortunately, I don’t know what the law in your country (which shall remain nameless) would say about whether or not this is stealing.

Let me therefore prescind from the legal question to look at the moral question. As we covered in The Moral Question, the sin of theft is "usurping another’s property against the reasonable will of the owner" (CCC 2408).

Let’s ask, therefore, whether it would be against the reasonable will of the owner to object to you downloading these .mp3s:

1. Since the work is not in print at the moment, you have no way of purchasing it in such a way that the copyright holder(s) would receive compensation. Even buying the book from a used book service or the records from a used record shop would not get them a royalty. Therefore, they therefore could not reasonably object to your downloading them on the grounds that you are presently depriving them of a royalty.
2. They could, however, reasonably object that by downloading them you would be undercutting the market for them should they decide to put them back in print at some point in the future. If you already have a copy, you don’t need to buy a new one, and so they could miss a royalty from you that they would otherwise get at some future date. This is a reasonable objection.
3. You can meet this objection by making a commitment (a real, solid commitment, that is, not a phoney-baloney one) to buy the product should it be put on the market again (assuming that you’re not destitute and they’re not charging outrageous sums for it).
4. You can strengthen this by committing to making a good faith effort to buy the product if it is ever re-issued in any form (e.g., if it comes out as a book but not an audiobook then you buy the book so that they get their royalties).
5. It seems to me that, if you really make a firm commitment to make a good faith effort to buy the product so they can get their royalties that their objection to the undercutting-the-market argument becomes unreasonable, at least in your case. (It would not be unreasonable in the case of many people who might make phoney-baloney commitments to buy the product if it is reissued). In such a case, your action in downloading the files would not appear to be the sin of theft.

What the civil law may say about the matter, I couldn’t tell you, but in terms of the moral law that the action would not count as the sin of theft if done under the conditions just named.

Recently I posted on the legal aspects of copying music and several asked me to go into more detail about the moral aspects of doing so.

Live to serve. Here goes:

1. Private property is not an absolute right. According to the teaching of the Church, the goods of the earth have been given as a common gift to mankind. As a result, no individual has an absolute right to any particular piece of property (CCC 2403).
2. Theft is thus defined not as "usurping another’s property" but as "usurping another’s property against the reasonable will of the owner." The Catechism then notes: "There is no theft if consent can be presumed or if refusal is contrary to reason and the universal destination of goods" (CCC 2408).
3. The orderly functioning of society requires us to have laws to regulate the flow of goods and services, and the State is the entity charged by God (Rom. 13) to oversee such matters. Therefore, "Political authority has the right and duty to regulate the legitimate exercise of the right to ownership for the sake of the common good" (CCC 2406).
4. One must presume that the entities charged by God with performing a task are performing it correctly unless the contrary is shown. Therefore, one needs to give the laws of the state regarding the regulation of private property the benefit of the doubt.
5. If you can show that, in a particular case, these laws are contrary to the common good and that the costs of violating them (to oneself and others) are less than the benefits of doing so then one can, in principle, deviate from them (in which case one bears one’s punishment if one is caught).

Now let’s apply this to copying music. There are two aspects that need to be covered (a) copying music where it is not permitted by the civil law and (b) refusing to copy music when it is permitted.

In regard to the first:

• Artists have a moral right to be rewarded for their efforts in creating works of music to entertain and edify us. So do the record company employees that invest in and promote artists in hoping of earning a living.
• It must be presumed until the contrary is proven that the civil law adequately expresses these rights.
• To show that in a particular case it is morally licit to make uncompensated copies of a song one will have to show that in that particular case the requirements of the civil law are contrary to reason and the common good required by the universal destination of goods. This is going to be much harder to do than in the typical example of a starving man needing food that he has no money to pay for.
• In particular: It means showing that there is some reason why you need that song right now and you can’t pay the 88 cents needed to download it from Wal-Mart or another service. (Wanting to make a mix disk for your friend isn’t a good reason since you can pay for the burns you need to make of individual songs and then give the resulting disk to your friend.)
• In the old days it may have been easier to show such things, but today, with all the ways we have available to us to get music in a way that compensates the artist and record company, it is becoming increasingly difficult to do so.
• The only way I can see to argue for widespread uncompensated downloading would be to argue that copyright law is fundamentally contrary to the common good, which seems plainly incorrect (and contrary to the Bible’s teaching that artists need to be compensated for their labor; as in "the worker is worth his wages"). Also, if there were no copyright laws then fewer artistic works would be produced because there would be no profit in them, so such laws seem to foster the common good.
• While one could argue something other than copyright as a way of ensuring compensation for artists, such systems are hypothetical. Copyright is what our society is using now to compensate artists.
• The general damage done to society by widespread disregard for the law and the scandal done if others are aware of your covert variance of the law also must be factored into the above decisions.

Now for refusing to exercise all of the copying options that the civil law affords:

• Again, the provisions of civil law enjoy the benefit of the doubt.
• Therefore, if civil law judges a particular act of copying as licit, it should be presumed to be morally licit as well.
• Thus if the civil law allows for the copying of a broadcast piece of music then it is to be presumed to be licit until the contrary is shown.
• If one wants to argue against this, one could argue to the particular case or in general.
• The only way I can see to argue against it in the particular (i.e., it is wrong to copy this particular piece of music when the law says you can) would be if doing so would gravely harm the artist (i.e., he really badly needs the two cents he would make off the copy if you bought it) or if the song itself will have bad effects on someone else (e.g., it’s going to tempt you to sin).
• Arguing against taking advantage of copyright law’s fair use provisions in general also seems problematic. First, fair use provisions exist in order to protect the common destination of goods that the Church teaches to exist.
• Second, many of the cases of fair use copying are actually compensated indirectly, removing the need for direct compensation. For example, if you’re copying a song from a broadcast service then the service from which you are copying it is compensating the artist and record company. The service then expects to make its money back from its audience either directly (e.g., by subscriptions, as with cable or sattelite radio) or indirectly (e.g., by advertising, as with broadcast TV and radio). The value added premium on blank recording media also contributes to this (Cowboy hat tip to the reader who provided the link in the comments box on the original post!).
• Thus the money to sustain the system still flows from the audience to the service to the record company to the artist, it’s just handled differently. If it weren’t the players in the system would stop performing their function in it. If it weren’t profitable for them, they’d go out of business or find another line of work.
• Third, and related to the former, the artists and record companies that have bought into the system have chosen to do so. Sure, they might like to make more money, but the fact is that they have chosen to do business under the conditions afforded by the civil law. If they don’t like that law, they can lobby to change it, but their decision to do business under the terms of civil law establishes a presumption that, while they may not like all provisions of civil law, they feel it better to do business under these terms than otherwise.
• It is true that the Church recognizes that the consent of the worker is not a sufficient condition for the moral licitness of an arrangement, but this does not mean that the consent of the worker is not relevant to the moral licitness of the arrangement. The Church’s teaching on this point is meant to protect workers who are impoverished and virtually enslaved to their employers. It is not directed to multi-millionaire recording artists or multi-billionnaire record companies. When they consent to an arrangement, it is because they feel it is profitable for them to do so, not because they will starve if they choose to make money another way.
• I thus see no problem in relying on the civil law’s provisions for fair use copying as a general matter.

Recently I posted on the legal aspects of copying music and several asked me to go into more detail about the moral aspects of doing so.

Live to serve. Here goes:

1. Private property is not an absolute right. According to the teaching of the Church, the goods of the earth have been given as a common gift to mankind. As a result, no individual has an absolute right to any particular piece of property (CCC 2403).
2. Theft is thus defined not as "usurping another’s property" but as "usurping another’s property against the reasonable will of the owner." The Catechism then notes: "There is no theft if consent can be presumed or if refusal is contrary to reason and the universal destination of goods" (CCC 2408).
3. The orderly functioning of society requires us to have laws to regulate the flow of goods and services, and the State is the entity charged by God (Rom. 13) to oversee such matters. Therefore, "Political authority has the right and duty to regulate the legitimate exercise of the right to ownership for the sake of the common good" (CCC 2406).
4. One must presume that the entities charged by God with performing a task are performing it correctly unless the contrary is shown. Therefore, one needs to give the laws of the state regarding the regulation of private property the benefit of the doubt.
5. If you can show that, in a particular case, these laws are contrary to the common good and that the costs of violating them (to oneself and others) are less than the benefits of doing so then one can, in principle, deviate from them (in which case one bears one’s punishment if one is caught).

Now let’s apply this to copying music. There are two aspects that need to be covered (a) copying music where it is not permitted by the civil law and (b) refusing to copy music when it is permitted.

In regard to the first:

• Artists have a moral right to be rewarded for their efforts in creating works of music to entertain and edify us. So do the record company employees that invest in and promote artists in hoping of earning a living.
• It must be presumed until the contrary is proven that the civil law adequately expresses these rights.
• To show that in a particular case it is morally licit to make uncompensated copies of a song one will have to show that in that particular case the requirements of the civil law are contrary to reason and the common good required by the universal destination of goods. This is going to be much harder to do than in the typical example of a starving man needing food that he has no money to pay for.
• In particular: It means showing that there is some reason why you need that song right now and you can’t pay the 88 cents needed to download it from Wal-Mart or another service. (Wanting to make a mix disk for your friend isn’t a good reason since you can pay for the burns you need to make of individual songs and then give the resulting disk to your friend.)
• In the old days it may have been easier to show such things, but today, with all the ways we have available to us to get music in a way that compensates the artist and record company, it is becoming increasingly difficult to do so.
• The only way I can see to argue for widespread uncompensated downloading would be to argue that copyright law is fundamentally contrary to the common good, which seems plainly incorrect (and contrary to the Bible’s teaching that artists need to be compensated for their labor; as in "the worker is worth his wages"). Also, if there were no copyright laws then fewer artistic works would be produced because there would be no profit in them, so such laws seem to foster the common good.
• While one could argue something other than copyright as a way of ensuring compensation for artists, such systems are hypothetical. Copyright is what our society is using now to compensate artists.
• The general damage done to society by widespread disregard for the law and the scandal done if others are aware of your covert variance of the law also must be factored into the above decisions.

Now for refusing to exercise all of the copying options that the civil law affords:

• Again, the provisions of civil law enjoy the benefit of the doubt.
• Therefore, if civil law judges a particular act of copying as licit, it should be presumed to be morally licit as well.
• Thus if the civil law allows for the copying of a broadcast piece of music then it is to be presumed to be licit until the contrary is shown.
• If one wants to argue against this, one could argue to the particular case or in general.
• The only way I can see to argue against it in the particular (i.e., it is wrong to copy this particular piece of music when the law says you can) would be if doing so would gravely harm the artist (i.e., he really badly needs the two cents he would make off the copy if you bought it) or if the song itself will have bad effects on someone else (e.g., it’s going to tempt you to sin).
• Arguing against taking advantage of copyright law’s fair use provisions in general also seems problematic. First, fair use provisions exist in order to protect the common destination of goods that the Church teaches to exist.
• Second, many of the cases of fair use copying are actually compensated indirectly, removing the need for direct compensation. For example, if you’re copying a song from a broadcast service then the service from which you are copying it is compensating the artist and record company. The service then expects to make its money back from its audience either directly (e.g., by subscriptions, as with cable or sattelite radio) or indirectly (e.g., by advertising, as with broadcast TV and radio). The value added premium on blank recording media also contributes to this (Cowboy hat tip to the reader who provided the link in the comments box on the original post!).
• Thus the money to sustain the system still flows from the audience to the service to the record company to the artist, it’s just handled differently. If it weren’t the players in the system would stop performing their function in it. If it weren’t profitable for them, they’d go out of business or find another line of work.
• Third, and related to the former, the artists and record companies that have bought into the system have chosen to do so. Sure, they might like to make more money, but the fact is that they have chosen to do business under the conditions afforded by the civil law. If they don’t like that law, they can lobby to change it, but their decision to do business under the terms of civil law establishes a presumption that, while they may not like all provisions of civil law, they feel it better to do business under these terms than otherwise.
• It is true that the Church recognizes that the consent of the worker is not a sufficient condition for the moral licitness of an arrangement, but this does not mean that the consent of the worker is not relevant to the moral licitness of the arrangement. The Church’s teaching on this point is meant to protect workers who are impoverished and virtually enslaved to their employers. It is not directed to multi-millionaire recording artists or multi-billionnaire record companies. When they consent to an arrangement, it is because they feel it is profitable for them to do so, not because they will starve if they choose to make money another way.
• I thus see no problem in relying on the civil law’s provisions for fair use copying as a general matter.