Mr. Chairman, honorable members of this subcommittee:

On previous occasions I have testified before congress as a bioethicist; today I appear before you in my more general role as a social ethicist.  Social ethics calls on diverse fields for guidance: the law, philosophy, religious traditions, history, and the social sciences. 

In one sense the question before us is straightforward. To intentionally take that which does not belong to you is to violate the social contract.  Intellectual property is a form of property, and intellectual theft is a form of theft.  Under such circumstances the justifiable legal response is clear: Those who commit theft are liable to punishment.  

Yet if our goal is not merely to be punitive, but to craft an effective public policy, the law is a notoriously blunt instrument.  There are many social behaviors in which the rigid application of the law is not only ineffective in solving the essential problem, but may actually aggravate the problem by encouraging offenders to find ingenious new ways to evade authorities.  Prosecution may also be disproportionate to the value lost, seemingly arbitrary in its selection of targets, and erroneous.

Further, if powerful and distant entities that control a highly valued item institute legal measures that are widely perceived as draconian, they may encourage disrespect for law, especially among the young.  Still more complex are situations like this one, in which the culture itself is evolving in tandem with technological change. 

The underlying problem is this: Many people with otherwise healthy moral intuitions fail to see internet file-sharing as theft, or if they do, they do not perceive it as wrong, or at least not very wrong.  Of course the pricing structure of compact discs is widely resented because the blank CD is so inexpensive and downloading can be accomplished with ease.  But these facts do not explain the largely guilt-free social psychology of so many file sharers.  A more nuanced explanation is required.

First, those who are victimized are “moral strangers,” are distant and unknown to us as individuals.  Harms to moral strangers do not easily excite our guilt.

Second, consumers have become accustomed to the portability and transferability of music, partly because of successful marketing by the industry.

Third, unlike familiar forms of copying a recording, as in the case of “bootleg” audio tapes, the copy never needs to be a physical object but can remain in electronic form.  Physical associations with theft may be absent.

Fourth, the very term file-sharing connotes altruism and community.  In particular, many adolescents find a sense of community more easily in the World Wide Web than in the rest of their lives.  In this case what seems to be an impersonal, wealthy and imperious industry places itself in opposition to this otherwise positive value.

These factors do not justify theft, but file-sharing is not simply an attack on the concept of private property.  It is a demand for access to a highly valued social commodity, a demand triggered and facilitated by technology.  A new interpretation of the social contract is emerging, and industry and the law must take note.

If file-sharing is the wave of the future, as many believe it is, then adversarial approaches should not be the first, and certainly not the only response.  Though aggressive prosecution may result in a short-term deterrent, in the long run it cannot stem the cultural tide. 

In the short run, the industry should expand its effort to acquaint us with its moral strangers, the hard working men and women behind the scenes.  Taking a longer view, the music industry must adapt its business model to the new culture.  It must explore measures to renew consumers’ sense that they are being dealt with fairly.  Devising alternative pricing structures through the Web, developing technologies that allow for appropriate personal use, and building more value into the product are among the constructive approaches that should be at least as aggressively pursued as legal remedies.

In their wisdom, the framers of the constitution specified that inventors should have rights over their products “for limited times.”  They were concerned to balance the right to property with the need for civil society to flourish through the vibrant exchange of ideas.  Artistic media are especially important for social flourishing because they create the common coin of human experience.  In this field, civil society itself is changing, and the music industry must change with it.  Measures to protect the legitimate interests of artists and the industry should be as creatively and sensitively crafted as the artistry itself. 
 
Thank you.