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Tone Deaf to a Moral Dilemma?

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Times Staff Writers

Susan Philips has a conscience so sensitive to ethical failings that she feels guilty if she leaves her shopping cart adrift in the grocery store parking lot.

Her influence is reflected in her elder daughter’s career choice: Miriam Philips, 22, wants to be a rabbi.

On at least one moral dilemma, though, mother and daughter are on opposite sides. To Susan, downloading music on the Internet without permission is wrong. To Miriam, it’s just what you do when you go to college.

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“My freshman year I was like, ‘No, that isn’t right.’ I wouldn’t do that at all,” Miriam said at her family’s kitchen table, two blocks from the sand in Seal Beach. But by her sophomore year at Brandeis University, she said, she was steering her iMac to free music, collecting enough songs to fill 150 CDs.

Philips’ shift helps explain why the record industry has been losing its battle to shape the public’s definition of theft in a digital society. Music labels have won a series of court rulings and poured millions of dollars into marketing the message that downloading free songs amounts to online shoplifting -- but CD sales keep sinking.

Now the record companies are readying their most desperate bid yet to shake up the public psyche: The industry plans to bombard college students, parents of teenage downloaders and other Internet users with lawsuits alleging millions of dollars in copyright violations.

One goal is to persuade parents to crack down on their children’s file sharing before an entire generation comes to expect music to be free. Unlike Susan Philips, many parents see no problem if their kids download tunes, and some actively encourage it for their own ends.

Some observers argue, however, that the effort is as futile as the federal government’s attempt to ban booze 80 years ago. About half of the Internet users in the United States, some 60 million people, copy music, movies and other digital goodies from each other for free through online networks such as Kazaa and Morpheus -- a statistic that suggests a culture of piracy already has solidified. Said one teenage Kazaa user, “It’s hard for me to see it as wrong when so many people are doing it.”

She reflects the view of many downloaders. They understand that what they’re doing may break the rules of copyright law, but they don’t see anything immoral about it. In fact, some even argue that copying a song online isn’t “stealing” because the owner still has the original track and still can sell the CD.

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Miriam Philips, for example, said that she and her friends at Brandeis knew that their music copying “was illegal and why it was illegal.” Similarly, two recent surveys found that a growing number of people acknowledge it’s wrong to download songs without permission, but that it doesn’t stop many of them from doing it.

Like countless millions, Philips said she felt no guilt about downloading music from a shared campus folder. Not downloading “is the normal ethics of my life,” she said, but at college her ethical meter was, well, recalibrated.

And she offered no sympathy for the record labels or well-known artists.

“They’re big. They’re rich. They can deal with it,” she said, adding later: “You can argue that it’s illegal but not unethical once they’re rich.”

Said Deborah Rhode, law professor and director of the Keck Center on Legal Ethics at Stanford University: “There’s a view that no one’s really harmed. And that turns out to be one of the major predictors of dishonest behavior, whether people can actually draw a connection between their actions and some concrete identifiable victim.”

Plus, the ephemeral nature of online music makes it difficult for some to conceive of downloading as stealing. Philips, for instance, said she would never download a movie for free. That’s not acceptable even by her college standards.

What makes music different?

“I guess I don’t put as high a value on it,” said Philips, whose tastes run from Aaron Copland and Stephen Sondheim to Barenaked Ladies and the Byrds.

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Expressing a common view, she said music was “more of a background thing,” providing flavor to her day but not a focus. As a result, she said, it’s “something that doesn’t feel quite as tangible” as a movie.

Jonathan Zittrain, director of the Berkman Center for Internet & Society at Harvard Law School, also noted that downloaders copy songs without taking them away from the people sharing them. “Normally, we think that sharing is a good thing,” Zittrain said. “It’s not just, ‘Hey, we’re all looting.’ It’s not a looter’s mind-set.”

File sharing networks are like groups of libraries that invite people to roll photocopiers from stack to stack. To “share” songs on a “peer-to-peer” network such as Kazaa, for example, users simply put them into a folder on their computer and open the folder to others on the network. Anyone searching for those songs can use Kazaa to find the computers where they’re stored, then download copies onto his or her PC.

The Recording Industry Assn. of America argues that it’s illegal to share or download music without permission because the labels’ copyrights give them exclusive rights to distribute and make copies of their songs. That view is widely supported when it comes to users who copy hundreds of files, but some legal experts contend that downloading a few files may prove to be legal under the “fair use” doctrine in copyright law.

“It’s far too early in the day to conclude that everything everyone does with peer-to-peer, even when it comes to copyrighted MP3 files, is conclusively infringing,” said Peter Jaszi, a law professor at American University.

In addition, Philips and others argue that their downloading actually can benefit labels and artists. The free songs stoked her interest in pop music, Philips said, and prompted her to buy more CDs than she ever had before. She now owns about 50, many of them from artists she discovered through downloading.

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“There’s really no service that provides this,” she said, adding that she doesn’t usually fall in love with music unless she listens to it a lot. And buying a CD without knowing the songs “is too darn expensive.”

It’s a common refrain from downloaders -- CDs are too expensive, new releases often contain only one or two good songs, and there’s no other way to satisfy their curiosity about unfamiliar bands. Another familiar argument is that they support the artists whose music they copy for free by going to their shows and buying their T-shirts.

A college-bound 17-year-old named Amber, who asked that her last name not be used, said if she wanted only one song from a CD, she wouldn’t buy the disc -- she would just download the track from Kazaa. Amber’s parents stopped buying music for her when she landed a part-time job, she said, so she has to make every dollar she spends on music count.

If she winds up downloading several songs from the same record and liking them, she said, she’ll buy the CD -- as she did with recent releases by Missy Elliott, Ludacris, Tyrese and Bow Wow.

“In that sense,” Amber said, “I do have a conscience.”

Cody Morrow, a 13-year-old Simi Valley skateboard fan, said he had used file sharing networks to locate music he couldn’t find at his local record store, such as songs from punk band Operation Ivy. By his logic, his family is paying for the privilege of access to music when it pays for Internet access.

His mother, Maryann, an accountant, has drawn a clear line: Although reselling music downloaded from the Internet is against the rules, her son’s practice of copying music for personal use is fine.

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The notion that record labels would sue individual kids seems to generate more anger than worry. Taking families to court for behavior like her son’s, she said, is outrageous. “I’m in America. [Suing] for personal use? I think that’s crazy.”

Parents, she suggested, are far more concerned their children may become involved with drugs or violence than with online music.

“I pick my battles,” she said. “You don’t want to be nagging and harping, or they’re not going to listen to anything you say.”

But the major record companies remain determined to force a shift in families’ dynamics. Even as the RIAA prepares to seize parents’ attention with lawsuits, music executives increasingly have been trying to call attention to the fact that file swapping networks also are frequently used to share child pornography and other X-rated images.

Record executives say privately they’re also aiming to use the proliferation of pornography as a means of persuading members of Congress and law enforcement officials to take a tougher stance against the file networks.

With the debate intensifying, many Internet-savvy parents are forecasting a tectonic shift for the $30-billion global music business. David Philips, Miriam’s father, envisions a future “where the key to power is ownership of information and the movement of information.” And Philips, a former rock ‘n’ roll roadie who has no love for the major record labels, worries that copyright holders’ power is expanding while antitrust enforcement is diminishing.

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“From the perspective of starving musicians, I think the file sharing networks are a huge plus,” said Philips, a civil engineer. “It is theft, but it’s probably in the public interest.”

Yet he also says flatly, “If you take something without permission from someone who believes they ought to be paid for that thing, according to Jewish law, that’s stealing. And you shouldn’t do it ... because to behave unethically is spiritually degrading. You are not as good a person as you were before.”

Susan Philips also condemns unauthorized file sharing, but without any qualification.

“It’s not just the artist who’s getting cheated” by unauthorized downloading, but also songwriters and accompanying musicians, she said. And though it’s probably true that the record companies are taking advantage of their artists, she said, the artists wouldn’t get very far without the labels’ support.

She vaguely remembers talking to Miriam about her music copying practices and telling her, “It doesn’t seem ethical to me.” Miriam says if the conversation did take place -- she doesn’t recall it -- it wouldn’t have affected her downloading.

After all, that’s what she would expect her mother to say.

Other downloaders say their parents encourage their file sharing and CD burning, either directly or unwittingly. Amber said her mother didn’t know a thing about computers, and her father didn’t object to her using Kazaa. He even asked her to make a CD for him of songs from Body & Soul, a music channel on cable TV, so she dutifully downloaded a number of R&B; classics and put them on a disc.

RIAA officials hope that the coming wave of lawsuits will prompt more parents to crack down on their teens’ downloading. The RIAA plans to sue the people responsible for the Internet accounts used to share files, and not necessarily the file sharers themselves. If a Kazaa-crazed teen is targeted, his or her parents are the ones who’ll be named as defendants.

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The lawsuits probably will change some young downloaders’ attitudes too. In a recent survey by Forrester Research of 1,170 12- to 22-year-olds, nearly 70% said they would stop downloading music if there was a “serious risk” of being fined or jailed.

But James DeLong, director of the Center for the Study of Digital Property at the Progress & Freedom Foundation, a conservative think tank, said enforcement won’t be effective unless the music industry offers compelling legal alternatives to file sharing.

“If they have the stuff available legitimately, then they can make the moral case that people ought to be paying the artist,” he said. “And I think people will accept that.”

For Miriam Philips, free music is a thing of the past. Her ethics meter has been reset since college, she said. Of course, it helps to be back home, a couple of thousand miles away from the daily temptations of the Brandeis computer network.

“It’s easier to refuse to do it,” she said, “because you’re not doing it on a daily basis.”

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To read more Times coverage on music sharing and piracy, go to latimes.com/piracy.

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