The Ethics of Piracy

This David Pogue post, describing a talk he gives on copyright ethics, is pretty interesting:

It was early in 2005, and a little hackware program called PyMusique was making the rounds of the Internet. PyMusique was written for one reason only: to strip the copy protection off of songs from the iTunes music store.
The program’s existence had triggered an online controversy about the pros, cons and implications of copy protection. But to me, there wasn’t much gray area. “To me, it’s obvious that PyMusique is designed to facilitate illegal song-swapping online,” I wrote. And therefore, it’s wrong to use it.
Readers fired back with an amazingly intelligent array of counterexamples: situations where duplicating a CD or DVD may be illegal, but isn’t necessarily *wrong.* They led me down a garden path of exceptions, proving that what seemed so black-and-white to me is a spectrum of grays.
I was so impressed that I incorporated their examples into a little demonstration in this particular talk. I tell the audience: “I’m going to describe some scenarios to you. Raise your hand if you think what I’m describing is wrong.”
Then I lead them down the same garden path.
“I borrow a CD from the library. Who thinks that’s wrong?” (No hands go up.)
“I own a certain CD, but it got scratched. So I borrow the same CD from the library and rip it to my computer.” (A couple of hands.)
“I have 2,000 vinyl records. So I borrow some of the same albums on CD from the library and rip those.”
“I buy a DVD. But I’m worried about its longevity; I have a three-year-old. So I make a safety copy.”
With each question, more hands go up; more people think what I’m describing is wrong.
Then I try another tack:
“I record a movie off of HBO using my DVD burner. Who thinks that’s wrong?” (No hands go up. Of course not; time-shifting is not only morally O.K., it’s actually legal.)
“I *meant* to record an HBO movie, but my recorder malfunctioned. But my buddy recorded it. Can I copy his DVD?” (A few hands.)
“I meant to record an HBO movie, but my recorder malfunctioned and I don’t have a buddy who recorded it. So I rent the movie from Blockbuster and copy that.” (More hands.)
And so on.
The exercise is intended, of course, to illustrate how many shades of wrongness there are, and how many different opinions. Almost always, there’s a lot of murmuring, raised eyebrows and chuckling.
Recently, however, I spoke at a college. It was the first time I’d ever addressed an audience of 100 percent young people. And the demonstration bombed.
In an auditorium of 500, no matter how far my questions went down that garden path, maybe two hands went up. I just could not find a spot on the spectrum that would trigger these kids’ morality alarm. They listened to each example, looking at me like I was nuts.
Finally, with mock exasperation, I said, “O.K., let’s try one that’s a little less complicated: You want a movie or an album. You don’t want to pay for it. So you download it.”
There it was: the bald-faced, worst-case example, without any nuance or mitigating factors whatsoever.
“Who thinks that might be wrong?”
Two hands out of 500.

As Pogue goes on to state, there's a pretty obvious generation gap when it comes to copyright law. I have a teacher in his late 60s who believes that the purchase of a CD does not give one the right to rip it for even personal use, and that if someone wants a digital copy of a CD, they must purchase it again from iTunes or another digital download store. I also have a friend who, when I recommended he listen to Radiohead, proceeded to download their entire discography from BitTorrent and listen to it. There's a pretty substantial gap between those viewpoints.
And I think there's a grain of truth in both of them. Obviously, I don't buy iTunes copies of albums I or an immediate family member owns on CD; I just rip them. My view is that the purchase of a CD or other physical music source doesn't just entitle one to the use of that source, but instead entitles one to the use of the intellectual property - the music - the source contains. But, I'll confess, this view has its contradictions. I'm more than willing to BitTorrent an album I own on vinyl, but I'm not willing to steal a vinyl or CD copy of an album I bought from iTunes or eMusic. The reason is obvious: the downloading of MP3s of an album doesn't deprive anyone else of access to the music, whereas stealing a physical copy does. That is, CDs and LPs are subject to scarcity, whereas digital music is not. But for this logic to work, I have to concede that when I download something from iTunes, I own it only in digital form, whereas if I buy a physical copy I own it both physically and digitally. And there's a double standard there. I think it's a defensible one, but it's a double standard nonetheless.
But even as I don't go to the restrictionist extremes of my teacher, I don't just blatantly pirate albums I haven't paid for either. It seems pretty clear that a creator of intellectual property is entitled to some form of compensation, just as any other economic producer is. And as the son of a software developer, my own livelihood depends entirely upon intellectual property being paid for like any other good. But it's possible that my decision to not pirate music isn't really virtuous. Like most 17-year-olds, my supply of fun money is pretty small. As a result, I buy far fewer albums than I would pirate if I had no ethical qualms about doing so. If I were to buy the albums I can afford (as I do now), and in addition pirate the remaining albums I want, there'd be no change in compensation to artists from the current situation. Indeed, the moral payoffs of this would probably be preferable to those of my current actions; my utility would be increased by having more albums, and that of the artists whose albums I pirate would be increased as well, as I'd be more inclined to pay for concert tickets or other albums from them. Indeed, this is the conclusion of a recent study from the Journal of Political Economy, cited by the Atlantic's terrific Primary Sources feature. Here's the Atlantic summary:

The recording industry can stop blaming sagging sales and profits on online pirates: They’re cheapskates who probably wouldn’t have bought the albums they downloaded, according to an economic analysis of file-sharing and album sales. The study’s authors focused on the impact of Germany on downloads and sales in the fall of 2002: A sixth of all U.S. downloads are from German sharers, and during German school holidays—when kids are at home, online, and sharing their collections—the supply of pirated music available to U.S. listeners balloons, making downloading quicker and easier for Americans. But the authors found that albums that debuted in the U.S. when German kids were on holiday sold just as well as albums that debuted when German kids were in school. (They estimate the maximum number of album sales lost to piracy each week at no more than 368 copies.) Declining to endorse or condemn music pirates, the authors nevertheless point out that the net effect of piracy seems to be beneficial: The recording industry loses little or no money, and millions of American and German tightwads get their music for free.

So the scenario above - buying the music one can afford, pirating the rest - seems to have a net positive utility in practice, as well as in theory.
So should I just start stealing whatever music I want but can't pay for immediately? I still don't think so. For one thing, this would require me to use BitTorrent very frequently. The way BitTorrent works - with downloads compiled from files owned by other BitTorrent users - this means that I would be supporting the piracy, including the unethical piracy, of others. But mostly, "music I can afford" is a hard to define, and frequently changing, category. I generally have a set amount of money per month to spend on music. Suppose I buy as much music as I can with this, and then pirate the rest. Then, the next month, I get a new influx of cash. I can now afford to buy some of the albums I pirated the previous month. So that music I pirated is not music I couldn't afford; it's music I could afford a month later. Thus, the piracy is unethical. Eventually, enough months will pass that I'll have enough total cash to pay for all the albums I pirated that first month; with each passing month, more downloads will become unethical until, eventually, all of them are. And at that point I'm back to the actions I undertake now.
But whether one buys iTunes copies of every CD they own or just pirates all of one's music, it's clear that the creation of digital property has fundamentally changed the ethical implications of theft. Digital intellectual property - be it music, movies, software, eBooks, or whatever - is not subject to scarcity the way physical property is. In a world of CDs and LPs, the idea that buying what music one can afford and stealing the rest can be ethical wouldn't even be considered; when it costs something for a producer to create an additional copy of a good, denying them payment for it is clearly wrong. But when the marginal cost of producing something is $0, it's more complicated. I still don't think pirating music is ethical. But there's certainly more room for debate than there is with physical theft.

Comments

[PQuincy]

I'm convinced that we wrap ourselves in knots about issues like this because of the widespread, nearly universal acceptance of the category 'intellectual property' to describe all sorts of things protected by copyright, patent, or trademark.

If we remembered exactly what copyrights and patents are: government-created LICENSES to a limited monopoly, the whole set of issues would be much clearer. This post, for example, gets stuck on the ethics of 'property' whose taking does not deprive anyone else of the same property. Well, that's a very weird quality for 'property' to have, but makes a great deal of sense if we look at it as a license violation.

Effectively, the metaphorical and historical ramifications of the 'property' concept get in the way of a sensible treatment of digital creations and the protection of their creators and the companies that support them or who buy digital product in order to market it. Indeed, 'intellectual property' (and the general proliferation of weird legalistic kinds of property...since when is the 'right to pollute' a piece of property?) is one of the larger threats our society and culture face, because it threatens to tie more or less every normal cultural process into endless knots.

It's a LICENSE people, and one with real and valuable benefits both to copyright/patent/trademark holders and to society as whole...which means that license violations should be sanctioned in appropriate ways. But it simply ain't PROPERTY. Nohow!

(Indeed, our proliferating culture of intangible property resembles nothing so much as the proliferation of 'privileges' in the Ancien Regime before the French Revolution...and as we know, that didn't work out so well!)

[Gene]

This was an incredibly well thought out essay on the ethics of piracy. When I read that it was composed by a boy of 17 years, my jaw dropped. Not once did you dismiss or ignore something pertinent to the issue of ethics of downloading. Your clarity should be applauded, thank you for writing this article.