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Christians, Music & the Digital Age

By Philip Joy.

Is it right for a Christian to download free music or videos from YouTube?

Probably of far greater concern to the Lord Jesus than our present muddle over the rights and wrongs of Gay monogamous relationships is the issue of audio piracy among the people of God – basically: theft, for we are well and truly in the digital age, and this affects our young people and their parents, and indeed most of us, including ministers, who bother with music at all.

Due to the demise of my modest Nokia C1-01 music phone, I am about to become the proud owner of an (albeit 4th generation, but 64gb!) ipod! Just think of all that memory, and what I could fill it with! But, before I go the whole hog down the itunes road, I am asking myself about the ethical implications, and whether the odd dodgy download I have made in the past could, or should, become a habit. Now obviously I avoid music piracy download sites as most Christians hopefully do, but YouTube is a different matter. So far, while 90% of my 16gb music archive is ripped from my CD collection anyway, or is of old recordings off the legal database Internet Archive, or has been bought online from Etunes or Amazon, yet the quantity downloaded from YouTube using NCH free conversion software is growing.

For most in society the point is an easy one: you are not selling it on to third parties, it’s for your own personal use, therefore it’s perfectly legal and ethical. How far is that a Christian response? So far my rationale for ethical downloads from YouTube have been:

1. unavailable old performances, say before 1950 – old recordings being a particular interest of mine;
2. when an item does not have a ‘buy on etunes or itunes’ logo at the bottom left;
3. when it is a recording of a publicly broadcast television concert;
4. when I am trying to decide whether to buy a recording and the samples don’t give enough information.

I accept that the above rationalizations are susceptible to challenge. The most obvious case being that copyright lasts for 70 years after the death of a performer or composer, which takes us onto the legal ground.

Clicking the “I Accept” button has become something of a joke recently: who actually does read the endless small print with online software? But I discovered to my dismay in researching this article that the YouTube Terms of service, available online, paragraph 5.1L state that in using the service I’ve been using for the last couple of years:

"You agree not to access Content for any reason other than your personal, non-commercial use solely as intended through and permitted by the normal functionality of the Service, and solely for Streaming. "Streaming" means a contemporaneous digital transmission of the material by YouTube via the Internet to a user operated Internet enabled device in such a manner that the data is intended for real-time viewing and not intended to be downloaded (either permanently or temporarily), copied, stored, or redistributed by the user.

This seems pretty clear: YouTube is meant for streaming, not for downloading, period. It is pointed out that there is advertising on there which we do not see if we download. Oops. Have I now got to put some cherished recordings ‘beyond use,’ like those who destroyed the Ephesian scrolls in Acts? Oddly, from my research on the net, it appears the matter is not so black and white. Although the issue has not yet been contested in the UK, there is currently a lawsuit going on between Google (who own YouTube) and a downloader called YouTube-Mp3, a tiny company run by a single (rather remarkable) 19 yr-old German man. Google claim his software is illegal and causes others to infringe the Terms of Service. However, it is by no means a clear-cut case.

First, there is the technological issue that streaming is indistinguishable from downloading. As charming ‘Yahoo answers’ geek Duncan points out:

“Amazing how many internet illiterate people there are. When you STREAM video, you ARE downloading it PERIOD! The ONLY difference is you are watching it AS it downloads. It is simply downloading to a temp folder ON your PC...

Every PC, it seems, has the tools to access this data, even if most of us need a third party programme to walk us though the necessary steps. Until such time as YouTube encrypt data as does BBCi Player (a form of protection called DRM), it seems that they are trying to have their cake and eat it. In fact, software is out there to remove even iPlayer DRM, but I’d steer well away from that since if a service is encrypted the intention is to restrict access. YouTube, on the other hand, presents itself as a form of Open Access. Some items get taken down, but on the whole, if YouTube don’t restrict someone from posting Lutoslawksi’s Fourth Symphony, why should they restrict someone (probably just me, lol!) downloading it for later, since streaming is frequently interrupted and anyway account holders don’t post their offerings indefinitely?

Second, and again, a technological issue, YouTube downloading software does not in fact depend upon YouTube – only the web URL, and the web is open to all. Incidentally, you can test this yourself when doing a YouTube download by shutting the browser you’re using for YouTube – hey presto, the download continues! It all depends on how lawyers interpret the phrase “as intended through and permitted by the normal functionality of the Service.” Do individuals posting music create the ‘Service’ or is it the YouTube platform which is in view? Molly McHugh of ‘Digital Trends’, writing an online article in July 2012 on the case, points to the platform itself being the only thing YouTube can legally restrict use of:

… there’s a very important loophole. According to YouTube-MP3 founder Philip Mantesanz, the application doesn’t use the YouTube API… which is one of the things it’s being accused of doing in Google’s lawsuit against the site in Germany.

So what is the current status of Google’s challenge to YouTube-to mp3? Top German lawyer Phillip C Redlich has stated pretty unequivocally that, while there remains no encryption technology on YouTube, and no copyright agreement to be signed every time you post your favourite song on YouTube, under German Federal law at least, the same rules apply as to recording off the telly:

“Downloading of streamed content from YouTube by natural persons for their private use does not currently require the consent of the copyright holder. The right to make copies for private use is protected under § 53 para. 1 UrhG. This applies for as long as YouTube does not conclude effective contracts of use with its users that refer to the download ban or does not implement technical safeguards that prevent permanent storing of content. The right to make copies for private use is not affected by the fact that in its terms of use, YouTube declares unilaterally that it does not wish copies to be made.” 

In Canada, which recently passed a law called the C-11 Copyright Modernization Bill, a similar comparison is made to the recording of television programmes as a form of “Time Shift”. If audio ripping is done legally (for which purposes YouTube is considered legal) and is used for private purposes, and the individual does not give the content away, makes no more than one copy, and keeps the content for a reasonable amount of time in order to listen at a more convenient time, then:

“It is not an infringement of copyright for an individual to fix a communication signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing.”

Indeed, it appears under ‘time-shift’ rules, there is no reason why music format, or hardware platform (drive, ipod, cloud) should not also be freely interchangeable. The accepted opinion from Digital Trends is that Canada at least “does not prohibit individuals from taking audio from YouTube and transferring it to…favorite devices for later listening.”

Meanwhile Philip Mantesanz  points out that if he doesn’t publish download software, others will, and a good deal less scrupulously than himself. He says:

Anonymous companies registered in locations like the Cayman Islands…have a different legal system. Those guys won't act like a little student who just wanted to build a great service but will be heavily profit oriented. They won't have a problem with spreading malware, showing pornographic ads to minors, advertising gambling or fake medicine, tricking their users into hidden costs and lots of other despicable things as long as the paycheck is big enough….and I can say: The paycheck is big.

So the jury is very much out on the legal side, and the alternatives are unpleasant. Yet what of the personal ethical implications, since there is a difference between the law of the land and the law of the Lord? I’m sure you will agree with me that a lot depends on whether parties are losing money due to changing downloading habits. Certainly many of the greater pop musicians, in the face of reduced revenues, have been forced to go on tour again in order to maintain their lifestyles. But even this is a grey area, for as my daughter points out, many up-and-coming musicians who appear on YouTube are happy to use it as an online advertisement: should their song become popular, they are more likely to secure performing and recording contracts. Besides, if you are an audiophile, YouTube quality is considerably poorer than purchased downloads and I personally prefer live performances than studio ones.

I suppose the biggest thing that weighs on my conscience is the amount of money invested in my original CD collection, compared with the amount of money I could not afford to invest in downloads that I might buy. My dad spent a lot of money converting his vinyl collection to CD.  But I am talking about a completely new collection! If I fill up this new ipod with free YouTube conversions, how many hundreds of pounds worth of music will that represent, and whose livelihoods will be damaged by such action? Or are we simply moving into a new era of Open Access when it is no longer appropriate to ask such questions?

The answers are up to you. For me the most godly response is probably something I dub ‘process ethics,’ namely that, until the legal issues are resolved we must continue to apply some ethical restrictions to what we chose to download free, and we must continue to buy downloads of what we really like (and would buy if this were still the CD age). Finally, and hardest of all, we must accept that there may come a point where established changes in the law mean we are prompted, by our faithfulness to the Lord, to delete gigabytes of data. I hate Spotify, but if I were to predict the direction of the technology, it may become both more convenient (and in the long run cheaper) to buy into a powerful streaming service where you can listen to whatever you like as many times as you like without adverts and at top quality (assuming you have the right hardware and internet access is cheap, reliable and ubiquitous). This of course means a different attitude to possessions. But if Christians cannot have that, who can?