Music and the Tragedy of the Commons

Law school Property class can be pretty boring. But one of the things that I remember well is the day we dug into a concept called “the tragedy of the commons.” It is a dilemma where a group of self-interested people (meaning: a group of people) will deplete a shared resource even when they know it’s in the common interest to preserve it. In other words, people know that if they keep mooching, the producer will stop producing. But they do it anyway.

It is a dilemma where a group of self-interested people (meaning: a group of people) will deplete a shared resource even when they know it's in the common interest to preserve it. In other words, people know that if they keep mooching, the producer will stop producing. But they do it anyway. — The music industry backlash has been largely in the courts, because the harmful behavior is copyright infringement, and because the copyright laws create some powerful remedies for those few who become examples to the rest of us of how not to consume music when the industry is watching.

People often talk about the tragedy of the commons in the environmental and conservation/sustainability context, which makes sense. It also seems to me that the same rule applies to people who expect to get all of their music for free.

Local musician and recording studio owner David Lowery (Camper Van Beethoven, Cracker) recently made a very eloquent case for responsible musical consumption to a woman named Emily White, an intern at National Public Radio. White posted her thoughts and admissions on the subject of almost never paying for the songs in her massive music collection, and Lowery responded in detail on The Trichordist blog.

So who is to blame for this disconnect between creators and consumers? In my view, two equally culpable forces got us to where we are. One such force is the music industry’s failure for ten years or more to offer what people wanted — digital single songs for sale. By sticking stubbornly with the $15-$20 CD mode of distribution, copyright owners and their distribution partners created a void in the market that digital pioneers quickly filled by creating a black market. File-sharing and free downloads became the norm.

The other force is consumers’ ability to justify to themselves the free copying of content that is not offered for free. Law-abiding digital stations and stores are everywhere, either supported by ads, download fees, or subscriptions.

At this point in time, nobody can tell themselves that they are continuing to poach recordings because there is no legal option that is as convenient or delivers the one-song downloads or streaming services they want. And yet the attitude persists that all music should be free.

The music industry backlash has been largely in the courts, because the harmful behavior is copyright infringement, and because the copyright laws create some powerful remedies for those few who become examples to the rest of us of how not to consume music when the industry is watching. There is probably some deterrent effect on the public at large, and the effect on an individual defendant is certainly an enormous one.

So assuming we want to allow musicians to make a living by making music, here is the upshot: (1) If you love something, support it, or you risk depleting the resource, (2) when it comes to music, videos, books, photos, etc., unlicensed copying is not simply short-sighted, it is also illegal, and (3) entertainment industry lawsuits against filesharing or illegal downloads are here to stay.

Article from Issue #16