Straight Talk from the Editor, by Terry Whalin
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Kids & Intellectual Property: Where Have We Failed?

LegalHere's a disturbing article from The New York Times.  On the surface, it's yet another story of the mean, old RIAA going after a supposedly poor, defenseless college student for stealing a song or two.  The more I thought about how this particular student reacted and what he said though, the more irritated I became.

Here's a college student (Zachary McCune) at one of the nation's finest institutions admitting that he had been warned before and "his eyes glazed over", "it was a campus cliché" and he "quickly forgot about it."  This is the sort of person who gets pulled over twice for speeding, is issued warnings both times and then becomes outraged when the third incident results in an expensive fine.

This experience pushed McCune into action: He co-founded the local chapter of Students for Free Culture.  Great idea.  I tend to agree that the language and spirit of our laws need to be revisited from time to time, especially when technology comes into play.  The group apparently has roots tied to Lawrence Lessig's Free Culture book.  (It's a great book and I reviewed it earlier here.)

Although Lessig presents numerous interesting cases and models, I seriously doubt he'd ever advocate stealing content.  That's the point students like McCune need to understand.  It's perfectly fine to swap and share in the open source world, for example, but you need to respect IP ownership in the world of copyright.  So by all means, go ahead and build, contribute to and otherwise support the exchange of free content and ideas via the use of the Creative Commons license, but don't try to apply the exact same terms to other products that are protected under other models.  I firmly believe both can co-exist and thrive, but only if everyone abides by the laws.

This reminds me that I need to sit down with my own kids and make sure they're clear on all this...


Lori Cates Hand

Hi Joe,

I think the disrespect for intellectual property was alive and well before the Internet came along. (I shudder when I think about how many bootlegged cassettes I owned in the 80s! But I've more than made up for that by buying the same music later on CD, and then through iTunes.) But I think the Internet has just made it easier for people to steal music. When you've got no money but a prodigious appetite for music, it's awfully tempting...

And don't think this is just an issue with Gen Y and the millennials. At JIST we are constantly shocked at the number of older educators who think nothing of copying our books and using them in the classroom. They honestly don't know it's wrong!


I agree Joe, it's tragic and insane that vast numbers of people are okay with stealing. BUT, I also have to point the finger at the recording and movie industries. They have denied food to a starving mob and have caused irrational behavior in the process. I believe it will swing back, but it will never be as it could have been if they had properly adjusted their mindsets and economics.


I agree stealing is wrong. But this context is a lot murkier than you give it credit for.

1. The recording industry robs musicians blind - rights, money, work, you name it. Ask anyone.

2. In this scenario, going after people who share music files with friends - all right, call it stealing a hundred songs if you like - is like prosecuting a twelve-year-old for shoplifting a piece of gum while ignoring those thugs in ski masks who're sticking up the store. Worse: the thugs forced the store-owner to jack up the price of gum to $100 a stick, prompting the kid's thievery in the first place. STILL Worse: the thugs ARE the prosecutors; the store owner doesn't care if the kid steals the stupid gum! -- The presence of the thugs doesn't make shoplifting right, but who you should be condemning in this situation is a complete no-brainer.

Morgan Ramsay

Robin Hood was undoubtedly a criminal, but Hood is seen as a folk hero. Why is that? The answer is simple: thievery is not necessarily wrong. In fact, crime is a violation of policy, of law, and not necessarily of ethical mandate or moral code.

I only mention this because every conversation about intellectual property theft seems to boil down to someone proclaiming that "stealing is bad [simply because there are legal consequences for the act.]" That theft is inherently wrong is simply not true.

I should also note that the phrase "stealing digital [anything]" is a misnomer since theft requires an illegal transfer of possession. Bootlegging is probably the most appropriate term for describing the activity of copying product without a license to do so. I think most people have trouble wrapping their heads around this distinction.

When you download pirated music, you're not actually stealing; you're violating a license, a terms of use. Unlike services though, the licensor of a product doesn't really have an effective method of enforcing those terms of use. A service provider can simply deny you access, but what can manufacturers and distributors do? They have far less control over how people access their products.

As an entertainment marketer, I have to look at music piracy in a very different light. I wrote the following in response to another blogger talking about Radiohead's sales strategy for their new album "In Rainbows". By quoting what I wrote about the strategy, I'm referring specifically to the dynamics of commitment.

Nevermind that Radiohead is established. For emerging artists, giving away music is an excellent way to build an audience.

I think you need to look at the dynamics of commitment. Those customers who purchase free music commit to listening to the music. If all goes well, they are more likely to talk about the artist, go to concerts, and hey, even bring people with them to the concerts. And those people would be more likely to support the artist because their friend, who they trust, introduced them.

Those people who download the free music without any sort of investment are probably not people who would talk about the artist in any sort of public way, go to concerts, or even listen to the music at all. But they are likely to tell people who they share music with that if they’re interested they can go to the artist’s website and download the music for free. From that pool of people you can probably find more than a few who not only decide to pay but also decide to talk to more people about the free music. After all, the people they talk to are people who love getting stuff for free, and those people they tell thank them for sharing the information.

The same applies to free events. For International Game Developers Association, San Diego, I don’t require people to register to attend most events, but the people who do register tell others. People like to be a part of something and being able to say “I registered, I opted in, I accepted the invitation, and I made a decision to go” is a big deal.

It’s just as big of a deal to be able to say “I support the artist” or even “I support the troops.” These commitments help us shape our identities and most of us want other people to identify us with something positive.

While music pirates do not represent a unique market segment, they are a channel for marketing. A savvy marketer can certainly take advantage of how pirates behave to generate buzz for their products, and thus revenue indirectly. I have a hard time accepting that music piracy is as devastating to the record industry as claimed given the immense value of such communities and networks of people to marketing efforts.

Anthony S. Policastro

Hi Joe,
You hit one of the raw nerves of the country - there are so many people split on this issue.

However, I agree that using these massive file sharing programs to download free music is wrong, but the music industry is also wrong in ignoring the demands of the market.

For decades they produced albums and CDs with only one or two good songs. You would hear an artist on the radio, decide to buy their CD and when you played it, it contained the hit song and maybe one or two more that you liked. The rest were garbage. Months later the music industry would produce a second CD by the same artist with one or two "good" songs - the rest was garbage. So in essence, you paid roughly $12 to $16 a song - the price of the CD for one song that you liked. I stopped buying CDs years ago because I got tired of being ripped off. Apparently, a lot of other people felt the same way and this is why CD sales slumped, not totally because of pirated music off the Internet.

Now, I actually enjoy buying music off the Internet because I can listen to a snippet of each song and buy what I like. I don’t have to suffer through songs that I don’t like and get that sinking feeling that I was ripped off.

However, the pirates in the music industry don’t like this new business model because they are no longer making $12 a song. Now, they make less than a dollar a song, but sales have increased because of the ease of buying music on the Internet. But, they are not satisfied and still refuse to accept this model. They consistently pressure Yahoo Music and iTunes to increase their prices from 99 cents a song to $2.50 and above. Some mobile phone carriers charge $2.50 to $2.99 to download a song from their network to a cell phone most likely because of the music industry pressure.

So, as a last gasp in their attempt to bring back the $12 a song business model, the music industry has resorted to suing children. What they should be doing is putting their resources into developing the online music model to compete with iTunes and other online music services, but then again they can’t make $12 a song.


I think music strikes a particular chord because, as Anthony pointed out, we've all been paying a lot of money in many cases -- esp. with pop radio -- to get a good song or two.

That said, it continues to amaze me that people don't understand that anything online isn't free and legal. We often receive in manuscripts from experienced, professional writers that contain text clearly cut and pasted from an internet site. When we point out the plagiarism (often evidenced by degree symbols embedded in text), the authors are often shocked that this content wasn't just theirs for the taking.

Timothy Fish

I think that a big part of the problem is that people do not think about the consequences of their actions. Take Steve's comment for example, while not totally justifying stealing intellectual property (IP) he used the issue of recording companies failing to pay artists to say that there are more important things than ordinary people stealing IP. I don't know if recording studios pay artist fairly or if publishers pay authors fairly, but I do know that when people steal IP no one get paid fairly. It is impossible to watch millions of people to verify that they are not stealing, so it is necessary to make an example of those who are caught in order that those that are not caught will carefully consider their actions.

Part of the problem is clearly a lack of understanding. I saw a blog just the other day were an author was talking about developing a video preview for her book. Her methods involved going out and searching the Internet for photos using Google. While that is not wrong, in and of itself, it is very likely that she intended to use the IP of others in her own work and I doubt she intended to ask their permission.

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