Monday Musing: If Property Is Theft, Who Stole Our Music?

The critic bestrides, colossally.

Meaningful utterances can be represented in physical form: a spoken sentence may be represented symbolically by writing, or mimetically, by an audio recording. Such representations may be reproduced indefinitely, whether by a symbolic process (someone reads the words and writes them down again) or a mimetic one (someone makes a photocopy of the writing). Each time this happens, a physical object becomes the conduit for an idea, for some units of meaning. You may be able to guess where I’m going with this: I’m going to be talking about music, as is my wont, and the reproduction thereof. This has been something of a hot topic since information technology made it so easy, and it raises a number of questions that anyone with much interest in music has been forced to grapple with over the past few years.

When a meaningful utterance is represented by a physical object, it becomes easy to regard the two as inseparable; a word, after all, is composed of both a signifier (a sound) and a signified (a meaning), and it cannot be that word without both of them. When it is written on paper it becomes one specific instance of that word, however, and the written word on the paper is clearly someone’s possession, whether that be the person who wrote it, the person it was written for, the person who picked it up off the floor, or the person who bought the book in which the word is written. It’s the same with music: write it down in notation, and that musical idea becomes subject in some sense to all of the physical, cultural and social laws that govern material objects; ditto the recorded sound.

When a woodworker makes a chair, they turn an idea (the design of a chair) and some raw materials (wood etc) into an object (the chair); this object has value, because people like to sit down. When a musician makes a CD, they turn an idea (the composition) and some raw materials (CD, case, paper, ink for the printer) into an object (the CD); this object has value, because people like to listen to music. Are the two things equivalent or identical? Well for most of the history of the mechanical reproduction of music (which began around two hundred years ago with sheet music printing) they have been treated in a similar manner.

Music as a commodity would have been a very strange idea for most of history. Certainly its advent predates printing, and a hand copied music manuscript would have been a valuable object in the middle ages, the theft of which would have been a serious crime with drastic penalties; but music would not generally have been conceived as a tradable object, as a tangible, but as a service which musicians might be paid or otherwise induced to provide. The technological capacity to reproduce music, first in written form, and later as a sound, led to a set of social and commercial practices around music in which music itself became regarded as a commodity; there’s a direct connection between this commodification, in my view, and the increasing primacy of the written note, the gradual relegation of the musician to a literal reproducer of the score, rather than an interpreter with a responsibility to improvise and elaborate. With the advent of recording, or the mass production and distribution of recordings, the idea of the sound as a service provided by musicians, as an utterance, an act of communication in a particular social context, receded further; now the music ‘itself’, the actual material process by which musical meanings arise in the listener’s mind, becomes a physical commodity that can be given, taken, stolen, broken, mended, bought and sold. I would like to argue that this is a fallacy.

The wax cylinder, shellac platter, vinyl disc, cassette tape, CD, minidisk, DAT or whatever is a commodity, without doubt; it is worth a certain amount of itself, for its utility value as a recording medium, and it is worth a certain amount more with music on it, depending on the desirability of the music. To steal it is to deprive its owner of both its utility and its exchange value; to make it or have it made requires expenditure; to damage it impairs both aspects of its value. But these are all properties of the physical medium, not of the sound. Certainly the sound affects the commodity in various ways, influencing its use and exchange values, but the influence is not reciprocal: scratch a record and the master tapes are unaffected, as are all the other copies of the record; erase the master tapes and scratch every copy of the record in existence, and you have still not affected the sound in any way. A listener’s memory of the sound will not suddenly acquire a scratch, and nor will any secondary recordings anyone may have made, onto cassette tape for example. Which begs the question: where is the sound?

Well obviously, the sound only exists when you play back the recording. It is not sitting inside the physical media somewhere, as sound, waiting for us to release it like a genie from a lamp. It’s not a spirit. If you want to argue that music is a spiritual emanation, you can, and you may be right, but that’s a separate issue. The physical medium contains performance directions; the reproduction equipment, be it an orchestra or a CD player, interprets those instructions and performs the sound. Differing degrees of mediation are involved in that process, but for our purposes it is the same. So what is it that’s owned, bought and sold?

I think there are three answers to that question. The physical media is owned; the performance directions are sold; and the sound is bought. Nobody buys a record because they have a need for a disc of rigid black PVC; no more do they buy an orchestral score because they like looking at groups of five parallel lines with fly-shit on them; they buy these things because they want to hear the sound that is encoded in them. The vendor is in possession of the material objects, but they are of no value in themselves (at least not in this exchange); the value that the vendor is able to exchange resides in the utility of the instructions, be they bits in an MP3 file or pits in the foil of a CD. But what is owned? The physical medium is what changes hands, and is what is possessed. When we buy a recording we don’t come into possession of the symbolic or physical instructions encoded in it in the same way, since they are completely indistinguishable from and interchangeable with the instructions encoded in every other discrete physical example of the recording; we have bought access, we have bought a license to use them, a copy of them has come into our possession, but the idea that we might possess the symbols themselves seems tenuous. Legally, they remain the property of the copyright holder, if legalities are important to you, but conceptually they remain ideas, intangibles, patterns or numbers. And the sound itself, as we have seen, does not even exist, except at the moment of reproduction; we may have paid out because of our desire to hear the sound, but what we got for our money, was the physical commodity which stores the means by which it might be produced.

You might have noticed that I’ve been talking about possession rather than property. That to me is the real test of ownership; the fixity of the sound recording’s relationship to its physical medium has been the vehicle for its movement through commodity exchange networks, but now that relationship has been utterly dissolved, what does that do to the status of the sound? In practice it has made it un-ownable, and the only way to enforce the legal property status of sound recordings has been through some extremely heavy-handed coercive litigation, often directed at making an example of specific end users, in a way that few even of the current copyright system’s supporters would be comfortable with. When someone steals a recording on disc from a shop they are depriving another person (actual or corporate) of its value, but when they tape it, or rip it to hard disc, they are depriving nobody of anything. Copyright defenders argue that they are depriving them of a sale, which may or may not be true, but the important point is that the intellectual property owner is in possession of no fewer copies of the recording as a consequence of the ‘theft’. They can still listen to it, and they can still sell it: use and exchange value are unimpaired… or are they?

Part of exchange value is scarcity; if anyone can get a recording for free, then they are unlikely to pay for it. This definitely drives down prices, but people have continued to pay for recordings, in both tangible and non-tangible formats; the precise effect of an illegal download on sales is moot, since in some cases the downloader might otherwise have bought a copy, and in other cases they would definitely have not. In all cases the music has been more widely exposed, and this may or may not lead to more sales. The effect is debatable, but what’s interesting to me is that we’re debating the potential of the owner to exploit their legal rights in the recording, rather than to sell a commodity which they possess. The situation is really closer to that of the musician as service provider, to live performance, then it is to the sale of sheet music or CDs. Again, we’re talking about people buying access to the sound, but about the vendor selling something else, a performance, or the coded model of a performance for the purchaser to activate at will. The sound does not change hands; the sound is not sold; the sound does not exist.

Sometimes the sound exists, but during the financial exchange it doesn’t; and to me it seems ludicrous to speak of anyone owning or selling something that doesn’t exist. But the way that music is traded still treats the transaction as though the music were a tangible commodity. It is not a tangible commodity: as a performance model, i.e. as sheet music or as the audio files on a CD, it is an idea; the sound, or rather the sense that the listener makes of it, the music ‘itself’, is an utterance. I don’t believe that it is possible to own either an idea or an utterance. Obviously I’m aware that, according to the law, you can, but this brings us back to the distinction between property and possession; I don’t personally see how there can be any moral justification for anyone to claim title to anything that is not one of their possessions. If you think about that for a second, you’ll note that this is in conflict with every assumption underlying the way that you negotiate value in your day-to-day existence; it is in short an anti-capitalist position. Both of these questions, of whether it is possible to own ideas and utterances, and of whether the fundamental assumptions of capitalist economics are morally defensible, are things you’ll have to make your own mind up about. These are topics that are too large for this article, and if I’m honest I’m not well educated enough in the existing debates on these issues to make a meaningful contribution; but I think it is as well to lay my cards on the table before I go any further.

I believe that matters got confused when music was first encoded in physical media; the media began to be sold and exchanged, it attracted value, and it became hard to distinguish from the music. Once the two things became separable again, there was a desire to continue as things had been before, on the part of corporations with large copyright libraries, but also on the part of individual musicians whose livings depend on the income they derive from participating in the music business as it is currently constituted. But while it is possible to own a CD, it is not in my view possible to own a sound,or the instructions for creating one. Whether someone has got the data associated with a particular sound on their hard disc or not is nobody else’s business. Here’s why.

I don’t see any distinction between the digital files that enable a song to be reproduced mechanically, the sheet music that would enable someone to reproduce it performatively, and the memory that would enable it to be reproduced in the mind. Asking me to regard a sound or the capacity to reproduce it as your property is no different than asking me to regard my memory of you making the sound as your property.

Let’s say I hear you play a song; it’s a pretty simple song, and I remember it all. Then I play it to someone else. Have I violated your rights? Have I stolen from you? Are you entitled to demand that I give you some money? What if it was a poem? If I recite that poem to someone have I deprived you of a sale? If I recite it to myself, should I instead have bought a license in a sound recording of you reciting it? If I recite it silently, have I deprived you of the sale of the book that contains it? Have I copied it? What if the words weren’t a poem, but a discursive statement, an opinion or an assertion? Do you own them? What if it was the colour of your eyes? If I remember what you look like, do I owe you some money? Fuck off.

The idea of intellectual property is inherently capitalist. I question anybody’s right to retain control of any utterance once it has been published; you put it out there, you broadcast it to the world, and that’s where it is, out there, in the world. You no longer have it. It is futile to insist on your ownership of an utterance; there is no difference between something said casually in conversation, and a work of art. Obviously there are differences in the social context and conventions that apply to each, differences in the ways that people will respond to them, but they are both statements you have made in particular languages, and you have no more right to them once uttered than you do to the air you exhale. If you are a painter you still own the painted canvas, but that’s not the artwork; the artwork is the experience of seeing the canvas, just as a musical work ‘itself’ is the experience of hearing it. The idea of intellectual property is inherently capitalist because it implies the alienation of labour from its product, and the transformation of the latter from a social good into a commodity. Where once music was a social practice, it is now a medium for exchange value, and even if we are doing it on an amateur basis we are still obliged to treat it in this manner, because this is the world in which we live.

Many musicians may read this diatribe and wonder how the bloody hell they are supposed to make a living if they have no right to the recordings they make. Who am I to tell them they should let everyone download their music for free? I should make this clear: I’m not telling anyone what they should do, and I’m not arguing that musicians are wrong to exploit the exchange value of their work. I think everyone has the right to do whatever they have to do to make a living; we live in a particular set of circumstances, and we have to negotiate those circumstances to obtain food and shelter. I’m just arguing that the system in which we are making music is flawed, and that it is based on a multitude of indefensible assumptions. But I am also arguing that it is wrong to bring legal proceedings against someone for downloading music; and I am arguing that the prevailing circumstances should be resisted and if possible overturned, preferably by the simple expedient of people deciding to do things differently. People whose (probably precarious) livings are predicated on a particular set of relationships within the existing music business are understandably nervous about such a suggestion, and many have already suffered some negative consequences of the shift to a technological context in which copyright is difficult to defend. However, I’d ask those people to make a distinction between their short term financial interest and the long term social good. Capitalism maintains much of its popular support simply by being the means by which ordinary people make their living. Let’s be clear about this: everybody makes their living through capitalism. It’s the system we live under. That’s one of the ways in which the system remains the system: we are all encouraged to identify our interests with it. But this is a lie. Yes, we have to make a living; but if there was a different system, there would be different ways of making a living.

So if there’s no basis for claiming ownership of our artistic utterances once they’re out there in the world, but no alternative to doing so for artists who want to make a living, what am I saying exactly? Am I accusing musicians of some kind of venal and avaricious materialism? Far from it. I would suggest that the artist’s desire to retain control of their work is a function of their entirely justified desire to own the product of their own labour. I’m not saying that they should give their work away, but more or less the opposite: I’m suggesting that the commodification of music is the means by which capitalism takes it away from musicians. This is what the alienation of labour means for those that work in performance arts, or at least in this particular performance art, where the recording is so predominant. Of course I’m not saying that recording is wrong; genies don’t go back into bottles, and the extent to which recording technologies have enriched and transformed the language of music is almost impossible to overstate. I just think that we need to find new ways to survive as musicians in the landscape of internet capitalism, ways which bypass the corporate bodies that like to steal from us by interposing themselves between musicians and listeners. That’s another set of arguments though; this is an article about the ethics of copyright, not the virtues of the DIY music business. The important point here is that musicians, like everyone else, have the right to decide when to work, under what circumstances and to what end; as with other forms of work (or play), anyone who tries to claim a piece of the benefits they accrue from doing so is a thief. I may not think they own their utterances, but I do think they own their labour, and have the right to its product (however that may be defined).

The ethics of downloading are more usually discussed from the other end of the equation, and I’d like to wind this up by looking at the responsibilities of the listener. If musicians don’t own the sounds they make, does that mean that anyone who wants to download them from a torrent site is completely justified, and should attract no criticism for doing so? Hell no. We live in this world, not in the anti-capitalist utopia I might want to bring about; as listeners we need to accept that we are part of the network that music inhabits, and that our actions have repercussions for the creation and distribution parts of that network, just as those areas affect us. For a musician to claim ‘rights’ over their music is in some sense an acquiescence to capitalist economics, but it wouldn’t be necessary if listeners weren’t making a similar claim. If you discover a band you like, dig up a torrent, and download their entire discography, you are acting on the basis that you have the right to do so; well I’m not too sure that I even believe in rights at all, but that’s a topic for another day. The point I’d like to make here is that rather than assuming we have the right to something, thinking about the consequences of our actions might be more constructive. If you happen to really like Band A, and you want them to keep releasing music and playing gigs, then it’s in your interest to make sure they see some economic benefit from the aesthetic benefit they’re giving to you. Band A may make their music available on a no-minimum, pay-what-you-want basis; you should still consider sending some funds their way. Because even if they charge top-whack for their recordings, you can always find a torrent; you always have a choice. If they are ridiculously successful, like Metallica or Jay-Z, things are different; anyone who is a multi-millionaire as a result of their music career is part of the problem, and stealing all of their property over and above what they need to live on would be to everyone’s benefit, including theirs. For fuck’s sake, don’t ever give them any more money! But if there’s any doubt, make sure they get paid. If you’re not a musician you may not be aware of this, but a lot of the bands and artists that you’ve heard of, that you think of as famous, have got bugger all in the bank, and it’s not your place to judge whether or not they need the money. Sometimes you literally don’t have the money to pay: what do you do then? What I do, is I download if the artist makes free downloads available, and I make sure they get something later; but I don’t go looking for a torrent if it’s clear the artist doesn’t want me to download for free. I take that line not because I think the artist has the right to dictate what I do (that should be abundantly clear by now!), but because I respect the difficulty of making a living as an artist, and the artist’s right to decide how they go about doing so. But I’m not telling anyone else they should take the same approach: I wish everyone would consciously negotiate the ethics of that choice, because if people took individual ethical responsibility, if people understood that their choices have consequences, and that they are making consequential choices when they decide how they get their music, musicians and listeners would both be better off.


  1. I think a lot of the ethics stems from the delay in response from the music business with regards to the Internet and technology. When I downloaded my first mp3s (it was a very rare self-release from a band I like), there was virtually no discussion about the ethics of downloading–simply because while the technology existed, it wasn’t available or widely feasible. Pirating existed, but more often than not by personal exchange.

    Home taping existed, but although music companies decried it as immoral to do so, they never went on the legal attack, because unless you had the money for the equipment to make high-quality cassette copies, the copies themselves degraded the quality of the original. The difference is that unless you had some kind of piracy ring and a lot of money to invest, you maybe made mix tapes for your friends, or simply copied an LP for your own personal use. However, home taping obviously did NOT kill music, as was sloganized by the RIAA back then.

    The invention of the CD saw music transformed from encoded analog waves on LPs to data. Data, pure and simple. A CD could contain both computer files and data, and for all intensive purposes, the two are identical on a CD. Then came the CD-R–now we can copy that data to another disc and give it to someone. (So far, we’re still in “home taping” territory.) Then, the advent of the mp3, which compacted this data to a size that was much easier to transfer over a network.

    Now, the mp3 still degraded the overall sound quality, especially in its earlier days, but suddenly it was e-mailable, downloadable, and otherwise transferrable. Internet speeds still weren’t much to write home about compared to today, so there were whisperings of ethical questions, but not a lot of noise was made. It wasn’t until the advent of Napster that the controversy got widespread attention from record labels–where people could almost anonymously post their music collection for other people to download.

    It stands to reason, then, that it’s not sharing music with a friend that gets the industry’s back up, but widespread availability of free music. In Canada, a court decision set the precedent that only uploading, or making available, copyrighted works was illegal, but downloading was not. Not that this says “downloading is morally right”, but it places the onus on the person making the songs available to copy. The other side of the coin is the RIAA’s position that downloading is theft, uploading is piracy and file sharing sites enable illegal activity.

    However, their extreme in suing the pants off of anyone they can get an IP address for is simply covering up for the fact that the business model they are protecting was put in danger. And there has been collateral damage–CD stores are going out of business. However, is it the morality of getting music for free that caused the controversy, or is it the fact that mp3s affect their bottom line more deeply than home taping ever did?

    I think the ethics of downloading are slowly resolving themselves. Recent statistics show that more and more people are purchasing digital downloads, because there are now more choices and more outlets for legal downloading. In fact, a large part of this increase in legal downloads may just be because without the physical media, it’s cheaper for the average consumer, and in many ways more convenient. There will always be file-sharing, but people are starting to vote with their money, realizing that some of these musicians might be rich, but they also need fan support. Some of us do offer our music for free, but not because we believe it’s valueless, but because at some level we want to connect our message with whoever wants to listen–and that, to me, is more valuable than tagging an album with a $10 price.

  2. Interesting stuff Jason, especially regarding the legal situation in Canada. I would agree that some sort of moral status quo is establishing itself, but I’m not sure the ethics of the issue are resolving themselves, unless you buy into international finance’s account of what’s ethical…

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