Get your money for nothing and your mp3s for free

On 31 July 2009, Joel Tenenbaum, a 25-year-old Boston University graduate student, was fined $675,000 for sharing 30 songs over the KaZaA peer-to-peer file-sharing network.  The charges were brought by the Record Industry Association of America (RIAA) in a case they had to win.

Tenenbaum was certainly foolish.  More than two years before he was charged, he was approached by the RIAA and asked to stop.  He refused.  Even during his trial, he continued to distribute.

His lawyer, Harvard Law School professor Charles Nesson, wanted to argue Fair Use; that Tenenbaum should have the right to distribute any songs he likes as long as he doesn’t attempt to profit from it.  The judge, quite correctly, struck this down.

The music industry is haemorrhaging money.  The RIAA attributes the simplicity of filesharing to the precipitous drop in revenue that the labels are experiencing.  All of “old” media – from content, to music, to film and television – fear the loss of control of their property that the internet is unleashing.

Tenenbaum is only the second person in the US to come to trial for illegal filesharing.  The RIAA has signalled that, while they will not be pursuing new cases – having made their point - the 18,000 people currently being charged will go ahead.

In Sweden, the Pirate Bay, a massive European filesharer, was recently the subject of a similar trial and the owners of the company were found guilty and are likely to serve jail time.

The peculiar thing about these trials is not that the property owners are suing teenagers, but the nature of the tweenies’ defence.  In Tenenbaum’s case, his lawyer crumbled polystyrene cups to demonstrate the diffusion of the web, pontificated at length, and grandstanded like a television-lawyer.  The Pirate Bay defendants blogged live from the court-room, tweeting their every idle thought and made fun of the proceedings.

If none of those activities meant anything to you, don’t worry.  But, outside of the courtrooms, the defendants were being supported by thousands of enraged youngsters determined to exercise their “right” to copy what they like, when they like.

Imagine a world in which there is no right to the result of your creativity.  You may be an aspiring musician.  You visit a producer to sell your talent.  A secretary copies your demo tape, puts it online and – before you know it – your song is playing all over the world.  Yet you make no money out of it and no label will sign you because your music is now in the public domain; no-one owns it.

But we can extend that to other industries.  We have already seen the lengths that pharmaceutical companies will go to in order to protect their patents against compulsory licensing.

The purpose of a copyright or patent is to grant a physical property right to an intangible product that can easily be copied and distributed.  The reason we do this is to permit the creator a period of monopoly ownership in order to recover the costs of their investment, and make a reasonable profit.

The reason we allow – even encourage – this pursuit of profit is simple.  We, as a society, hope that others will be inspired by these profits to push themselves harder and further to generate greater innovations and even better products in the future.

Who would voluntarily choose to work 20-hour days and burn out their youth if not in the hopes of some form of glory?

The debate to be had, and one that we are not having, is over how long that exclusive monopoly should last.  Copyright has been incrementally extended to more than 70 years after the death of the writer.

The Pirate Bay, now reinvented as an EU political party, has called for copyright to be limited to 5 to 10 years.  Now that really would be a call to prolific creativity.